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| Lodsys - This is going to get expensive . . . for Lodsys - UPDATED 2Xs |
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Tuesday, July 05 2011 @ 02:10 PM EDT
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Another day and three new declaratory judgment actions against Lodsys with respect to the four patents it has been asserting. While one of the three new actions is in the Northern District of Illinois, where several of the other declaratory judgment actions have been filed, two of them are in new venues - one in Arizona and one in the Southern District of California. This changing of venues is important. While Lodsys may seek to consolidate the cases in the Northern District of Illinois for the sake of efficiency (and saving Lodsys attorney's fees), Lodsys will likely have to defend in each of the other jurisdictions where a declaratory judgment action is filed, thus increasing the cost of defense as local counsel is retained in each case.
The new declaratory judgment actions are:
DRIVETIME AUTOMOTIVE GROUP, INC. vs. LODSYS, LLC
UNITED STATES DISTRICT COURT, DISTRICT OF ARIZONA
COMPLAINT FOR DECLARATORY JUDGMENT [PDF]
Case No. 2:11-CV-01307-NVW
Ballard Spahr representing Drivetime Automotive Group
ESET, LLC vs. LODSYS, LLC,
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA
COMPLAINT FOR DECLARATORY JUDGMENT [PDF]
Case No. 11CV1285WQHRBB
Jones Day representing ESET
LIVEPERSON, INC. vs. LODSYS, LLC
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
COMPLAINT FOR DECLARATORY JUDGMENT [PDF]
Case No. 1:11-CV-4088
Proskauer Rose representing Liveperson
Also, in the ESET case, ESET has filed a copy of the Lodsys letter [PDF] alleging patent infringement and the Lodsys claim chart that Lodsys sent ESET. The claim chart in particular may be helpful to those of you interested in continuing the search for prior art.
**********
Lodsys demand letter sent to ESET:
Lodsys, LLC
March 28, 2011
Via Federal Express
Ms. Rita Pertzborn
ESET,LLC North America
610 W Ash St., Ste 1900
San Diego, CA 92101
Dear Ms. Pertzborn,
Re: Infringement of U.s. Patent Nos. 5,999,908,7,133,834,7,222,078, and 7,620,565 (Abelow)
Lodsys, LLCa Texas limited liability company is the owner of United States Patents 5,999,908, 7,133,834,
7,222,078, and 7,620,565 (the "Lodsys Patents"). The Lodsys Patents are directed to systems and
methods for providers of products and/or services to interact with users of those products and services
to gather information from those users and transmit that information to the provider. Attached is a
complete copy of the '908 patent as well as certain pages of the '834, '078, and '565 patents for your
review.
The inventions described by these patents are used by companies to interact with users of their
products and services to, among other things:
- provide online help, customer support, and tutorials
- conduct online subscription renewals
- provide for online purchasing of consumable supplies
- survey users for their impressions of their products and services
- assist customers to customize their products and services
- display interactive online advertisements
- collect information on how users actually use their products and services
- sell upgrades or complimentary products
- maintain products by providing users notice of available updates and assisting in the installation
of those updates.
Some of the benefits companies receive from using these inventions are:
- increased product sales (of consumables, subscriptions, and complementary products)
- increased additional revenues (of in-product digital items and interactive advertising)
- more efficient design of subsequent products (through faster time to market, better targeted
features, and the ability to interactively update products in the field)
- greater customer satisfaction (both in terms of future product development as a result of
consumer input and through keeping products up to date or providing more effective online
help resources in a cost efficient manner).
The inventions detailed in the various claims of these patents were developed by Daniel Abelow, an
expert in usability and in the organization, presentation, and incorporation, of information in websites,
products, services, and enterprise systems. Dan earned a Bachelor's of Science in Economics degree
from the Wharton School of Business at the University of Pennsylvania in 1971 and a master's degree
from Harvard University, which included graduate work at the Massachusetts Institute of Technology.
As an independent consultant on presenting information via the internet, Dan's clients have included
companies such as Accenture, Agilent Technologies, Cisco, Harvard Business School, IBM, and Lotus
Development.
To date, companies including - Adobe, American Express, Apple, eBay, Google, Intuit, Microsoft, Nokia,
Nokia-Siemens, Nvidia, Sony, Sony-Ericsson, Verizon, Yahoo and several other Fortune 1000
companies - have chosen to license the Lodsys Patents.
Based on Lodsys' review, this letter constitutes our notice that ESET,LLC North America is infringing at
least claim 1 of US 7,620,565 and claim 1 of US 7,222,078 as it relates to your provision of notice of
available product updates and assisting in the download and installation of those updates with respect
to your ESETNOD32 Antivirus 4.
The Lodsys Licensing Opportunity
Lodsys' patented technology provides numerous benefits to your company by reducing costs, increasing
customer satisfaction, increasing revenues, and providing customer data and impressions that allow you
to build more effective and relevant products faster and with greater certainty of meeting real customer
needs. This is made possible by your collection of customer product usage details, demographic
information, impressions on the usefulness of features or relevance of advertisements, and desires to
customize your products or services and in what manner. It further occurs through the sale of
consumable supplies and product upgrades or enhancements, the sale of complementary products,
sales of subscription renewals, the provision of online support (to discover what customers do not
understand or are having troubles with), and in product (or in website) customer satisfaction surveys
and interactive advertising. These actions among many other instances of customer data collection,
provide you with the opportunity to sell more products and services, build new versions faster in a
competitive marketplace, have greater relevancy of your products and services (leading to greater
customer satisfaction and greater brand value).
We are interested in reaching a negotiated non-litigation licensing arrangement with you for ali uses of
the Lodsys Patents and would like to discuss this matter with you within 21 days of your receipt of this
letter. Please contact the undersigned at your earliest convenience to address this matter.
Lodsys, LLC
Lodsys is a limited liability company based in Marshali, Texas. We have retained the firms of Kelley,
Donion, Gili, Huck & Goldfarb PLLC (www.kdg-Iaw.com) based in Seattle, Washington, and The Davis Firm, P.c. (www.bdfirm.com) based in Longview, Texas, to assist the company in the licensing of the
Lodsys Patents.
Sincerely,
/s/ Mark Small
Mark Small, CEO
Lodsys, LLC
Mark.Small@Lodsys.com
(903) 935-3202
Enclosures (4)
Notice
Lodsys LLC reserves all rights with regard to the '908, '834, '078, and '565 patents, including: (1) the right to seek damages anytime
within the last six years that your company started to make use of lodsys' patented technology; (2) the right to change its royalty
rates at any time; (3) the right to change this licensing program at any time without notice, including variance to conform to
applicable laws. You should not rely on any communication or lack of communication from Lodsys, Kelley, Donion, Gill, Huck &
Goldfarb PLLC, or The Davis Firm Group as a relinquishment of any of Lodsys' rights.
and the Claim Chart:
ESET North America
Infringement Claim Chart
for Claim 1 U.S. Pat. No. 7,222,078
Claim 1 of U.S. Pat. No. 7,222,078
- A system comprising:
- Units of a commodity that can be used by respective users in different loctions,
- A user interface, which is part of each of the units of the commodity, configured to provide a medium for two-‐way local interaction between one of the users and the corresponding unit of the
commodity, and further configured to elicit, from
a user, information about the user’s perception
of the commodity,
- A memory within each of the units of the commodity capable of storing results of the two-‐way local interaction, the results including
elicited information about user perception of the
commodity. A communication element associated
with each of the units of the commodity capable of
carrying results of the two-‐way local interaction
from each of the units of the commodity to a central location and,
- A component capable of managing the interactions of the users in different locations
and collecting the results of the interaction at
the central location.
Alleged examples of the infringement of these claims are provided in images in the slides [PDF] containing the Claim Chart.
**************
UPDATE
Earlier today Lodsys filed a patent infringement suit in the Eastern District of Texas against a number of the companies that have previously filed declaratory judgment actions against Lodsys in other jurisdictions. Defendants in this new action are DriveTime Automotive Group, Inc., ESET, LLC, ForeSee Results, Inc., LivePerson, Inc., OpinionLab, Inc., and The New York Times Company. Look for Lodsys to now seek a change of venue in each of the declaratory judgment actions, transferring them to the Eastern District of Texas. The challenge will be that Lodsys was not the first filer or first to serve in these competing cases, and, as others have already pointed out, while the patents are common, the facts of the alleged infringements are not. Will be interesting to watch these battles play out. In the meantime, expect new declaratory judgment actions to be filed as other potential defendants seek to avoid the Eastern District of Texas.
Here is the new Lodsys complaint [PDF].
**************
UPDATE - 2
ESET, LLC has elected to file a second declaratory judgment action [PDF] against Lodsys, this time in the Eastern District of Wisconsin where it believes Mark Small, CEO of Lodsys, lives and works. Hey, the more the merrier! That brings the total number of DJ actions to seven, filed in four different jurisdictions.
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| Authored by: red floyd on Tuesday, July 05 2011 @ 02:52 PM EDT |
In case Mark has made a mistake.
Please use the title "rong => right", and in the message body, give
some context as to the location.
---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: red floyd on Tuesday, July 05 2011 @ 02:53 PM EDT |
Please put the title of the newspick under discussion in your title.
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I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: red floyd on Tuesday, July 05 2011 @ 02:54 PM EDT |
Please keep the discussion off-topic. Links are appreciated.
Use <a href="http://www.example.com">Link Text</a>
On-topic posters will be forced to serve on a patent jury in the Eastern
District of Texas.
---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: red floyd on Tuesday, July 05 2011 @ 02:56 PM EDT |
Not sure how far along we are, but any COMES transcriptions go here.
Most of you who have been posting them know the drill. If you don't, ask here
or in Off-Topic and I'm sure someone will help you.
---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: cjk fossman on Tuesday, July 05 2011 @ 03:31 PM EDT |
Any customer feedback card shipped with a product, along with
a file cabinet for storing the cards, fits claim 1 of the
patent.
This is Quality Management Systems 101. I'm once again
astonished at the US Patent Office for granting a patent on
something like this.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 05 2011 @ 03:50 PM EDT |
I am confused. What is to stop Lodsys from filing motions to consolidate cases
from the multiple jurisdictions in the name of judicial economy?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 05 2011 @ 04:56 PM EDT |
I've must have been watching too many lawyers on TV, but I guess
this is different from eliciting "from the user".
I had the obligation to install and use ESET-NOD32 in a previous job.
IIRC there was provision for the corporate admin to communicate with
ESET for the purpose of uploading unrecognised malware. I do not recall
if there was any provision to record "the user’s perception of
the commodity". Certainly for the peasants in the fields there was
only a provision for manual scanning of suspicious drives or documents.
All quarantine and feedback was automated, and that subset of users
could not have their perception elicited.
There was certainly a subset of users who had perceptions they
wanted elicited, mainly those who switched their machine off at night,
and found routine scanning and profile updates slowing their work.
[ Reply to This | # ]
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| Authored by: PolR on Tuesday, July 05 2011 @ 04:59 PM EDT |
Let's write a simple application which fundamentally runs this little dialog:
> Please say what to you think of this application?
> Answer:> [User type answers here]
Then the answer is recorded in a central location as the patent says, allowing
for multiple users in different locations to provide answers. But this little
application stores the text into a separate file, say it is called
elicitPrompt.txt. The application is coded to read and display to the user
whatever text is in this file and record the answer in a central location.
Here is the funny part. What if we change the text in the file? What if we make
it "What do you think of the Lodsys patent?" Then we get this dialog:
> What do you think of the Lodsys patent?
> Answer:> ?%$@!, from the bottom of my heart
With this simple change the application no longer infringes because it no longer
elicits the user's perception of the application. The difference between and
infringing and a non infringing computer program is not in the program. It is in
the text being displayed with no change to the actual program.
This patent is claiming as a function of a machine what is actually a function
of the semantics of the text. This is like a printing press. Its function is not
to print Shakespeare's Hamlet because this is a function of the meaning of the
text.
We can make it even funnier with this dialog:
Question> What do you want to comment on today?
Answer> The Lodsys patent
Question> What do you think of "The Lodsys patent"?
Answer> I will leave that to your imagination.
What if the user answers like this?
Question> What do you want to comment on today?
Answer> This little program which is now nagging me
Question> What do you think of "This little program which is now nagging
me"?
Answer> I will leave that to your imagination.
Now we see that the program will infringe or not infringe depending on how the
user answers the first question. This is because the patent attribute to the
machine something which is not the function of a machine.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 05 2011 @ 06:19 PM EDT |
Anti patent troll strategy requires industry wide cooperation.
1) Troll claims patents cover everybodys use
2) Everybody files different cases in different jurisdicitions for decrlaratory
non-infringement and slander
3) Patent troll is legal-fee'd to death attempting to cover all the cases in 2).
Failure to defend is also fatal
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 05 2011 @ 06:52 PM EDT |
... and it's pitiful what total ignorance of science and technology they show
when they speak such meaningless nonsense.
Judges are willfully and hopelessly ignorant, but cant admit it to themselves.
We are doomed.
[ Reply to This | # ]
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| Authored by: ThrPilgrim on Wednesday, July 06 2011 @ 04:09 AM EDT |
To date, companies including - Adobe, American Express, Apple, eBay,
Google, Intuit, Microsoft, Nokia, Nokia-Siemens, Nvidia, Sony, Sony-Ericsson,
Verizon, Yahoo and several other Fortune 1000 companies - have chosen to license
the Lodsys Patents.
To me that reads. We started off with no
assets so non of the above could be bothered to fight us. Now we have all this
licensing money so it would pay you to fight us. ---
Beware of him who
would deny you access to information for in his heart he considers himself your
master. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, July 06 2011 @ 08:32 AM EDT |
The claims are so broad that my razor + tap + drains almost qualify, depending
on what meaning is attributed to the different words.
The handle of my razor qualifies as a user interface, inducing loss of facial
hair qualifies as eliciting a response from the user, the space between the
blades qualifies a memory for storing the response (hair + soap).
The tap and drains are components for transferring the user response (hair +
soap) to a central location.
The only thing that is missing is a component for controlling the taps.
It may seem absurd, but it is a valid interpretation of the claims. If it can
apply to both a razon and a computer, maybe the patent is not descriptive
enough.[ Reply to This | # ]
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| Authored by: msfisher on Wednesday, July 06 2011 @ 08:37 AM EDT |
| Is there a law against venue-shopping? [ Reply to This | # ]
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| Authored by: msfisher on Wednesday, July 06 2011 @ 08:45 AM EDT |
Groklaw is great at spotting and highlighting prior art. Two things in that
regard.
First, just looking at the pdf (if I'm reading it right), ANY program which
elicits feedback, alerts a user to impending license expiry and sets up a
payment is infringing. This also means that ANY such system that pre-dates the
patent should be prior art. I can remember the equivalent to the ESET example
as far back as the early 1990's -- I think Norton products were set up this way.
Come to think of it, this also points to obviousness.
Second, perhaps Groklaw should try to get the equivalent charts & pdf's from
Lodsys' other targets. That way, the entire community can be brought to bear
regarding obviousness & prior art.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, July 06 2011 @ 11:25 AM EDT |
>Why is it fair for plaintiff to choose venue?
I didn't say that part was fair :) The assumption is that the plaintiff picks a
venue that's convenient for him, then the defendant can try to move the trial if
there's some really good reason for doing so. This system favors the plaintiff
a bit, which can be defended with these arguments:
-easier access to justice for victims of wrongdoing
-prevent a wealthy defendant/business from only having to defend before a jury
of its neighbors (i.e., friends and family of its employees)
-ensure locally-correct interpretation of local laws.
The lodsys case seems to be purely about patents, so the only applicable law is
federal, but the rule favoring plaintiff's choice of venue is easier to support
in cases where there is choice of applicable laws. You want the laws of
California interpreted by a state court in California, if at all possible.
"Convenient for the plaintiff" might mean "in a jurisdiction
with favorable laws", which is a feature. (Doing business in
Massachusetts? You might get sued in Massachusetts, under Massachusetts' broad
consumer-protection laws.) It might also mean "in a court with experience
with this type of law" (a feature), which is pretty hard to distinguish
from "in a district with a history of awarding verdicts favorable to
plaintiffs" (a bug).
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| Authored by: tanner andrews on Wednesday, July 06 2011 @ 01:15 PM EDT |
UPDATE: [Lodsys now suing thosee who sued it, having filed new
action in E.D. Texas]
Not only is there a possibility of venue
shopping, but those actions will not lie in Texas. They would appear to be
mandatory counter claims in the separate actions. They arise from the same
subject matter as the dec actions, and indeed the resolution to the dec action
will necessarily govern the Lodsys claims.
---
I am not your lawyer;
please ignore above message.
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| Authored by: Anonymous on Thursday, July 07 2011 @ 02:41 PM EDT |
says that the corporate address of LodSys is in Austin. I don't know if it
matters or not, but Austin is in the Western District of Texas, not the Eastern
District...
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| Authored by: bugstomper on Thursday, July 07 2011 @ 10:24 PM EDT |
What I find amazing about the construction claim is that Lodsys lays out how to
find prior art that should convince anyone, unless they do not intend to use
that claim construction in court.
They show how ESET Smart Security 4 has a registration reminder screen that
gives the user a way to enter credit card information that is sent to ESET where
they store information for later use, and the claim construction matches each of
those elements to the claim.
I did a quick search for shareware with online registration and focused on
results that looked like references to old DOS, Apple II, etc., shareware
programs that allowed one to register using a credit card number submitted over
a modem. You can tick off each of the elements in the claim construction in
products that were available in the 1980's, and it is an identical match to
Lodsys' claim construction against ESET, used for the very same purpose.
[ Reply to This | # ]
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