Out of sight, out of mind -- after a burst of deservedly bad publicity, Lodsys, a notorious alleged patent troll, seemed to disappear. No such luck: Lodsys and its cadre of lawyers have been busily suing the pants off developers large and small. Since the beginning of the year, Lodsys has filed suits against 20 technology companies related to techniques for upgrading those apps' capabilities, according to the Justia database of legal filings, including Walt Disney and 10 independent developers of mobile games or apps.
Unfortunately, Lodsys is hardly the only so-called troll ramping up its efforts, says Julie Samuels, an attorney with the Electronic Frontier Foundation. "These lawsuits against app developers are just part of a dangerous recent trend of patent trolls going after users. For example, a shadowy collection of shell companies [known as Project Paperless] has been blanketing the nation with letters demanding that companies pay them $1,000 per employee for the privilege of using standard office technology like [email-capable scanners]. And another patent troll [named Personal Audio] is targeting the podcasting community," Samuels wrote last week. (Kudos to Ars Technica, which broke and stayed with the scanner story.)
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The burst of troll suits once again underlines major flaws in both the patent and legal systems and shows that even the intervention of heavyweights Apple and Google is not enough.
Trolls are companies that buy patents and do nothing with them until they suddenly pop up with a claim that someone who is actually using related intellectual property is violating their rights and had better pay. What's more, trolls can shop their suits around until they find a court that's likely to be sympathetic, which is why all of the 65 suits filed by Lodsys since early 2011 are in the notoriously troll-friendly federal Fifth Circuit's Eastern District Court in Marshall, Texas.
Unfortunately, the blackmail seems to pay off. As of late last year, more than 150 companies had agreed to buy rights to its patent portfolio, Lodsys boasts.
Apple and Google step up, but patent abuse is widening
Although Lodsys is suing the developers, it appears that much of the "click to upgrade" technology under dispute actually belongs to Apple and Google. But Lodsys is targeting those who implement the technologies, not Apple or Google. "The developers don't even create this technology themselves. In other words, when they use this technology, they are taking on risks that they never could have contemplated," says the EFF's Samuels. (The EFF has produced a FAQ about Lodsys and offers help for defendants looking for lawyers. If your business is at all related to these cases, I suggest you go there.)
In a sense, the developers are actually users of someone else's technology, which is why Samuels mentions the Lodsys cases in the same breath as the Project Paperless and Personal Audio cases. What they have in common is that they aren't targeting the makers of the technology but businesses employing it, claiming the use of that commercial available technology is a form of patent infringement. It appears they intend to scare smaller developers and small businesses into paying claims, while avoiding expensive legal fights with the likes of Apple, Google, Hewlett-Packard, Canon, and Brother International -- some of the companies whose products use the allegedly infringing patents.