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Responding to Lodsys - Other Alternatives for Developers - Updated 2Xs
Wednesday, June 15 2011 @ 01:15 PM EDT

Patrick Igoe, Esq.'s article yesterday had several worthwhile suggestions, but I'd like to add a couple more, because there are a number of alternatives available to small developers. Some of you have asked what they can possibly do if they don't have a closet full of cash to throw at lawyers, so let's consider some more options, two of which require no money at all:
  • filing an antitrust complaint with the U.S. Federal Trade Commission; and
  • seeking reexamination of the Lodsys patents.


Reexamination:

To be honest, it is a bit surprising that no one has initiated a reexamination of the Lodsys patents, but perhaps folks are too busy building the case and it will be filed in due course. The key to an effective reexamination is finding relevant prior art. So what is prior art, and what makes it relevant?

Prior art is any documentary evidence (yes, it must be documented in either printed or electronic form) that demonstrates the patent claim is either not novel (i.e., someone already invented this specific thing) or obvious. It is the second concept, obviousness, that is often misunderstood. This isn't about whether someone would readily have thought of the idea at the time the patent application was filed or the claimed invention was first documented, it is about whether there are documents that demonstrate inventions practicing some, but not all, of the elements of the claim in question and whether it would have been obvious to a person skilled in the art to combine those pre-existing inventions to create the new one.

To establish a claim is not novel can generally be done with a single item of prior art that embodies all of the elements of the challenged claim. To establish a claim is obvious generally requires more than one item of prior art that, when combined, contain all of the elements of the challenged claim, and there is some likelihood that the idea of combining the two would have been obvious to one skilled in the art.

Prior art can be any printed (again, hard copy or electronic) matter, including, but not limited to: journal articles, advertisements, documentation, scholarly papers, etc. To constitute prior art, it must have been publicly available prior to the priority date claimed in the patent application, typically the filing date of the application.

Of course, one of the challenging aspects of finding prior art for so-called software patents is that the claims are so broad as to mean just about anything. So if you are interested in looking for prior art, consider just looking for documents that evidence the claims as they are being asserted by the patent holder. In the case of Lodsys, this means, for example, looking for software or web applications that permitted in-app purchasing that existed prior to August 6, 1992.

If you find prior art or know of prior art that may be applicable, send it to markwebbink at Groklaw.net or feel free to leave a comment. In either case, provide enough information so I can tell where to find a copy of the document. We will see that it gets to the right place. Thank goodness there are organizations like the Public Patent Foundation that are willing to challenge patents in the public interest. In addition, other public interest organizations, such as the Electronic Frontier Foundation, have taken note of this case.


The Federal Trade Commission:

The other activity which developers may want to pursue is a complaint to the U.S. Federal Trade Commission. In most patent litigation such a complaint would likely be without merit, but there are aspects of the approach that Lodsys is pursuing that are troubling. Lodsys is pursuing a tactic of suing small developers who lack the financial resources to defend themselves. As a consequence, they may be forced to take a license in a patent that (i) they actually don't infringe or (ii) is invalid. They may also be misled into doing so by Lodsys failing to be clear about what exactly constitutes the infringing activity and how that activity is encompassed in all of the elements of the asserted patent claim.

Asserting a patent beyond its scope may constitute a form of patent misuse. Although patent misuse may exist without an antitrust violation, when the misuse has anticompetitive effects. While we do not opine here on whether Lodsys' activities are anticompetitive, that possibility exists. And where that possibility exists, there is an avenue that is available to the injured party - filing a complaint with the Federal Trade Commission

If you believe you are being unfairly harmed by Lodsys' activities, send an email to antitrust at FTC.gov. You don't have to be a lawyer to do this. In the subject line you should direct the email to the attention of the Division of Anticompetitive Practices. Be sure to provide some background to what is happening and how you are being harmed. The FTC will need to have some idea of why they should look into the matter. And, by the way, such complaints are confidential.

As we said up top, if you are a small developer you are not without actions you can take. Don't feel like your only choice is to be rolled by Lodsys.

*********

Updated:

As some have pointed out, prior art may also exist in the form of a device. However, don't send me your prior art devices. A picture will suffice for now.

Update 2:

We asked Patrick Igoe for any tips to focus the search, and he suggests the following:

Quick summary of what is needed:

The most useful art will be 1992 or earlier. Since any hardware device that communicates with a server will have memory and communications components, and since nearly any UI could be considered to provide two-way interaction, the key things to look for are:

* a device with a user interface that elicits information about the user's perception of the device itself, and

* a centralized server for collecting the results of the users' interactions with the devices.

For instance, if the Xerox Docutech of 1990 had a UI for collecting user feedback about the Docutech itself and each Docutech sent that feedback to Xerox servers over a modem, a manual describing that function could be great prior art.

(I do suspect that the high-end print space is where we'll find something.)

You can find the four Lodsys patents here on our new Lodsys permanent page, with all the complaints and the dockets so far.

  


Responding to Lodsys - Other Alternatives for Developers - Updated 2Xs | 121 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Thread
Authored by: complex_number on Wednesday, June 15 2011 @ 01:30 PM EDT
No On Topic posts allowed.

---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

News Picks discussion Thread
Authored by: complex_number on Wednesday, June 15 2011 @ 01:32 PM EDT
Remember to include a clicky AND set your post mode to HTML if you do.

---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Corrections Thread
Authored by: complex_number on Wednesday, June 15 2011 @ 01:33 PM EDT
Remember to include the before & after so that the Author can fix their
typos...

---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

COMES Transcripts here please
Authored by: complex_number on Wednesday, June 15 2011 @ 01:36 PM EDT
Please post the formatted HTML as plain TEXT. Thank You.

---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Responding to Lodsys - what Groklaw can do.
Authored by: rsteinmetz70112 on Wednesday, June 15 2011 @ 01:50 PM EDT
I imagine that lawyers are right now searching for prior art to ask for a
reexamination. That is probably the only reason the request hasn't been made
yet.

In other cases the people here have been very effective at identifying prior
art.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Lodsys: Aiming High & Missing (by miles?)
Authored by: complex_number on Wednesday, June 15 2011 @ 01:54 PM EDT
IMHO, IANAL, it seems that if Lodsys had just kept their guns aimed at the
'small fry' then they might have succeeded. However they have aimed high. Some
of the companies they have sued have mightily deep pockets.

If you recall the one of the reasons why Groklaw was created, I think there are
parallels.
SCO aimed for the big time by going after IBM
Lodsys is going after the likes of Adidas.
Now the New York Times has weighed in to go after Lodsys.

IANAL, but if I were Lodsys Lawyer I'd be worried. Very worried indeed. Like SCO
they seem to have stirred up a hornets nest.



---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

prior art is not just documents
Authored by: Anonymous on Wednesday, June 15 2011 @ 02:31 PM EDT
http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35
_U_S_C_102.htm
<p>
You're focused on 102(b), but readers of groklaw may also be
interested in 102(a) or 102(f).
<p>
<blockquote>
A person shall be entitled to a patent unless-
<p>
(a) the invention was known or used by others in this
country, or patented or described in a printed publication
in this or a foreign country, before the invention thereof
by the applicant for patent, or
<p>
(b) the invention was patented or described in a printed
publication in this or a foreign country or in public use or
on sale in this country, more than one year prior to the
date of the application for patent in the United States, or
<br>...<br>
(f) he did not himself invent the subject matter sought to
be patented, or
<p>
(g) before the applicant's invention thereof the invention
was made in this country by another who had not abandoned,
suppressed, or concealed it. In determining priority of
invention there shall be considered not only the respective
dates of conception and reduction to practice of the
invention, but also the reasonable diligence of one who was
first to conceive and last to reduce to practice, from a
time prior to conception by the other.
</blockquote>
<p>
Surely a working machine (or piece of software), that
demonstrably existed before the invention date claimed on
the patent, and embodies all the claims of the patent, is
sufficient to invalidate the patent (modulo complications
about foreign inventions).

[ Reply to This | # ]

A web browser as prior art? (netscape and E-Bay)
Authored by: darkonc on Wednesday, June 15 2011 @ 04:09 PM EDT
A web-browser is an application -- and it allows one to make purchases from within that application. I was making in-app purchases with Netscape back in the '90s.

I don't think that anybody said that it had to be a dedicated purchase application...

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Responding to Lodsys - Other Alternatives for Developers - Updated
Authored by: Anonymous on Wednesday, June 15 2011 @ 04:21 PM EDT
I don't know if this would be considered 'prior art' However L. Neil Smith in
his novel Probability Broach written in the late 70's had an avatar in the
computer navigation system selling the occupants of the car products, like
movies or some such.

I could find the passage if it would help.

[ Reply to This | # ]

Not sure if this would count
Authored by: Anonymous on Wednesday, June 15 2011 @ 05:24 PM EDT
I seem to recall everquest 2, the mmo, they had a point where you could order a
pizza to be delivered, by ordering while in game, i think around 02-03 time,
will have to see what i can find.
apps are pretty much games in which you can buy things, tangible or not i
think.

[ Reply to This | # ]

Obviousness
Authored by: Anonymous on Thursday, June 16 2011 @ 12:19 AM EDT
It is the second concept, obviousness, that is often misunderstood. This isn't about whether someone would readily have thought of the idea at the time the patent application was filed or the claimed invention was first documented, it is about whether there are documents that demonstrate inventions practicing some, but not all, of the elements of the claim in question and whether it would have been obvious to a person skilled in the art to combine those pre-existing inventions to create the new one.
This is wrong. The law says that the invention must not be obvious to someone skilled in the art. The law makes no requirement that this be documented in writing. The documentation aspect was law created by the CAFC so as to make it hard to prove obviousness. It is pure judicial activism and has no basis in law whatsoever. It is merely CAFC obeying the corrupt desires of large patent holders. Someday, maybe Reagan's corrupt, activist CAFC will be overruled and the law will again be what matters.

[ Reply to This | # ]

Responding to Lodsys - Other Alternatives for Developers - Updated
Authored by: PJ on Thursday, June 16 2011 @ 01:12 AM EDT
I have done a permanent page with the docket entries for all the Lodsys cases. We'll improve it bit by bit, but here it is.

The four Lodsys patents are:

U.S. Patent 5,999,908
U.S. Patent 7,133,834
U.S. Patent 7,222,078
U.S. Patent 7,620,565

All PDFs.

[ Reply to This | # ]

Gaming the system
Authored by: Anonymous on Thursday, June 16 2011 @ 05:49 AM EDT
So Ultima Online from 1997 would make it not novel?

Or Ultima Online + real money makes it obvious?

I'm pretty sure there's plenty of ZX Spectrum and Commodore 64 games from the
1980s with shops in them.. So surely those plus internet (plus real money) is
another obvious set of prior art..

[ Reply to This | # ]

Two wrongs don't make a right
Authored by: Anonymous on Thursday, June 16 2011 @ 07:53 AM EDT
Using two ridiculous software patents to ridicule a third just supports the
flawed system.

There's a third option, which you haven't mentioned; simply ignore patent
trolls, like you'd ignore any other demand for payment from a random 3rd party.
Let them pay to get a default judgement, let them pay to try to collect on it.
Just make sure that you keep all your assets in a shell company, and let them
collect from a debt ridden development shell.

It's far cheaper and more effective to pay an accountant than a lawyer, and you
don't feel the urge to shower afterwards.

[ Reply to This | # ]

Standard ML
Authored by: PolR on Thursday, June 16 2011 @ 08:20 AM EDT
After reading claim 1 once again I came to the conclusion it would be simple to implement it in Standard ML showing that that computation is a mathematical computation pursuant to the mathematical definition of the Standard ML language. The procedure to follow is documented in the article 1+1 (pat. pending) - Mathematics, Software and free Speech.

Then the real world semantics of the program is a use of mathematical speech because nothing is claimed but the computation, data input and data storage. It all boils down to the meaning of the bits which are manipulated by a mathematical formula.

A related point which can be argued separately is that the claim contains semantical elements which are separable from the technology. This is a bit like arguing an addition may be used to add money, gravitational forces and items in inventory in a grocery. Therefore the calculator used to add numbers is the same machine regardless of the field of use.

In the case of the Lodsys patent. This point may be shown with an experimental demonstration. The claim requires the unit of commodity "to elicit about the user's perception of the commodity." In practical term, assuming the user interface is a command line interface, this is only the text of a prompt to be displayed. What if we change the text of this prompt? Then, by changing non executable data without changing any executable instruction, we obtain an otherwise identical program which does not infringe. So what exactly is patented? It is a machine? Would the meaning of the text of a prompt be some machine functionality? Or is it something like a novel which is something distinct from the book?

We may make this point more striking by having a user prompt asking "What do you think of ***". The Standard ML program may be written to take a parameter option upon starting and replace the *** from the prompt with some keywords taken from the parameter value. Then depending on the option supplied this same program could a a program asking for the user perception about itself, Barrack Obama, the patent system. The infringing character of the program depends not on how it is coded but on which prompt option has been selected. Fundamentally the claim is reciting a limitation on functionality which is not a feature of the technology being implemented but rather a point of semantics of the text shown to the user.

[ Reply to This | # ]

Minitel?
Authored by: macrorodent on Friday, June 17 2011 @ 01:08 AM EDT

I wonder if some applications of the French Minitel system could be prior art? A Minitel was a small terminal connecting to servers over a a slow modem. They were (maybe still are?) common because the phone companies introduced them in early 1980's as alternatives to the phone catalog. But I believe they also were used for forums, dating services, e-commerce etc. I hope some French reader can fill in more detail here.

[ Reply to This | # ]

The 908 patent
Authored by: ghopper on Tuesday, June 21 2011 @ 05:03 PM EDT
When I considered in-app purchasing, the first thing that came to mind were the shareware programs of the 80's and 90's that featured a nag screen to purchase them. Often these required that you print a registration form and mail it with a check, but streamlining the method of payment does not fundamentally change the flow chart of the transaction.

Reading the patent and looking at the diagrams got me thinking in a totally different direction. The '908 patent appears to cover a customer survey application tied to a hardware device, the aggregation and reporting, and the associated improvement process. I see nothing in the patent that talks about in-app purchases. Encryption is called out as optional. The system described is more similar to a web application than a typical iPhone application.

I don't know why it is important that that the questions be about the device itself. That describes the purpose of the invention, not the invention itself. It would be the same invention, regardless of whether it is collecting information about itself. This patent reads more like a business marketing plan than a technology description. They define a horde of new terms only to obfuscate the true simplicity of the invention. Of course, I'm thinking like an engineer, not a lawyer.

For prior art refernces, I would investigate the following:

  1. IBM mainframe terminals, such as the 3270, which came out in the early 70s. The 3270 can store the user's responses locally until the screen is completely filled out, filling the role of the CDP and CDS. The system admin defined screens (like the CDI and CP in the patent) which prompted for data, and then transmitted (ACD) and aggregated that data on the mainframe. Most of these systems did not have significant off-line capability, but that is not mentioned as a requirement in the patent.
  2. Web applications of the early 90s. Specifically, CGI form-mailers were popular in the early days. The '908 patent specifically mentions email as one of the possible methods of getting the user data back to the analysis system. The HTML form certainly fills the role of the CP and CDI, and the web browser becomes the CDP and CDS.
  3. Dial-up email service providers, such as Progidy and AOL in the 1980s. Certainly they collected customer satisfaction surveys before 1992, and aggregated those surveys and used the data to improve their service. Games hosted by these services or local BBSes might also provide the key.
Of course, the real trouble with prior art is finding admissible proof. I'll have to check my local library to see if they have any books that are that old.

[ Reply to This | # ]

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