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Apple to Lodsys: 'App makers are protected by [our] license'

Lex Friedman, Macworld.com | May 23, 2011
Apple says its license for Lodsys patents covering in-app purchases applies to all iOS app makers. The response came in a letter sent Monday to Lodsys and its CEO Mark Small. Lodsys had recently sent letters of its own to various independent iOS developers, threatening legal action over alleged patent violations.

A little more than a week after iOS developers were threatened with legal action by a company that holds various patents, Apple's legal department has struck back.

On May 13, many iOS developers reported receiving FedEx packages containing a threat that they risked patent-infringement lawsuits if they didn't pay Lodsys to license a patent covering in-app purchasing and other app-related matters.

In a letter sent Monday to patent-holder Lodsys and its CEO Mark Small, Apple says its existing license for patents covering in-app purchases applies to all iOS app makers as well.

The crux of Apple's letter, from senior vice president and general counsel Bruce Sewell, is right in its opening paragraph, which reads in part: "Apple is undisputedly licensed to these patents and the Apple App Makers are protected by that license. There is no basis for Lodsys' infringement allegations against Apple's App Makers. In addition to stating that Apple would share the letter with developers -- which it has -- the company also says that it "is fully prepared to defend Apple's license rights."

Though it runs for three pages, Sewell could have ended his letter there. Lodsys has already publicly stated that Apple licenses its patents; the companies agree on that. Apple's contention, which runs counter to Lodsys's previously published view, is that Apple's license covers iOS developers, too.

Under its license, Apple is entitled to offer these licensed products and services to its customers and business partners, who, in turn, have the right to use them.

But that's not Sewell's only point; his argument is twofold: Apple's license to the Lodsys patents covers iOS developers, and the alleged patent infringement isn't really occurring anyway. By way of example, Sewell cites Lodsys's claims regarding alleged violations of its U.S. Patent No. 7,222,078, which Apple says "covers two-way interaction with the user and elicits user feedback." Sewell writes:

Under your reading of the claim as set out in your letters, the allegedly infringing acts require the use of Apple APIs to provide two-way communication, the transmission of an Apple ID and other services to permit access for the user to the App store, and the use of Apple's hardware, iOS, and servers.

In other words: These developers aren't infringing Lodsys's patents, because they're using Apple software and hardware to provide the functionality that Lodsys alleged needed licensing. Apple's point is that, since the technology is Apple's, Apple's license is sufficient. Sewell makes the same point again regarding another alleged example of infringement:

Claim 1 also claims a memory that stores the results of the user interaction and a communication element to carry those results to a central location. Once again, Apple provides, under the infringement theories set out in your letters, the physical memory in which user feedback is stored and, just as importantly, the APIs that allow transmission of that user feedback to and from the App Store, over an Apple server, using Apple hardware and software. Indeed, in the notice letters to App Makers that we have been privy to, Lodsys itself relies on screenshots of the App Store to purportedly meet this claim element.

 

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