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Lodsys - Piling It On, But To What Purpose
Friday, July 22 2011 @ 08:26 AM EDT

The latest news out of the U.S. District Court for the Eastern District of Texas is that Lodsys has now amended its complaint to add five new defendants. Added to the growing list of Lodsys adversaries are: Electronic Arts, Atari, Take-Two Interactive, Rovio Mobile, and Square Enix. These are all game developers.

The list of Lodsys defendants/adversaries now stands at 40 (in alphabetical order):

adidas America
Atari Interactive
BBY Solutions, Inc.
Best Western International
Brother
Canon U.S.A.
Combay
The Container Store
CVS Caremark
Drivetime Automotive
Electronic Arts
ESET
ForeSee
Hewlett-Packard
Hulu
Iconfactory, Inc.
Illusion Labs AB
Lenovo
Lexmark
LivePerson
Michael G. Karr d/b/a Shovelmate
Motorola Mobility
New York Times
Novell
OpinionLab
Quickoffice, Inc.
Rovio Mobile
Sam's West
Samsung Electronics America
Samsung Electronics Co.
Samsung Telecommunications America
Richard Shinderman
Square Enix
Stanley, Black & Decker
Take-Two Interactive
The Teaching Company
Trend Micro
Vegas.com
Vitamin Shoppe
Wulven Game Studios

That's quite a diverse list, and it raises a couple of issues. First, the alleged infringement of these diverse defendants will also, presumably, be diverse. That may be why Lodsys has grouped them into different actions, but that does not assure that the alleged infringements are identical. As in past mass patent infringement suits, including the current Interval Licensing action, you may expect the defendants to ask to be separated. In Interval the defendants are consolidated for purposes of discovery and pre-trial action, but there is a likelihood that, to the extent they go to trial, each defendant will have the right to insist on a separate trial.

The second issue is that of diversity of infringement. These defendants exist on a spectrum. Some are hardware manufacturers, some are retailers, some are game developers. Look at how the nature of the alleged infringement is described in the various complaints:

The "Brother" Complaint related to patent 7,620,565(covering Brother International Corporation, Canon U.S.A., Inc., Hewlett-Packard Company, Hulu, LLC, Lenovo (United States) Inc., Lexmark International, Inc., Motorola Mobility, Inc., Novell, Inc., Samsung Electronics America, Inc., Samsung Electronics Co., LTD.,, Samsung Telecommunications America, LLC, Trend Micro Incorporated):

15. Defendant Brother has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Brother manufactures, uses, sells, imports, and/or offers to sell infringing printers and other products, including but not limited to the Brother MFC-9840CDW and other Brother printers with Brother ControlCenter3 software driver, which infringe at least claims 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

16. Defendant Canon has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Canon manufactures, uses, sells, imports, and/or offers to sell infringing printers and other products, including but not limited to the Canon PIXMA MG5220 and other Canon printers with Pixma Extended Survey Program and Solution Menu EX, which infringe at least claims 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

17. Defendant HP has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. HP manufactures, uses, sells, imports, and/or offers to sell infringing personal computers, printers and other products, including but not limited to Compaq Presario CQ56Z, HPG62m, HP G42t, HP Pavilion dv7t Quad Edition, HP Pavilion dv6t Quad Edition, HP Pavilion dv7t, HP ENVY 17 3D, HP ENVY 14 Beats, HP ENVY 14, HP Pavilion p6700z, HP Pavilion p6710t, HP Pavilion Elite HPE-500z, HP Pavilion Elite HPE0560z, and other HP personal computers with HP Support Assistant, and HP LaserJet Pro p1102w, HP LaserJet Pro M1212nf, and other HP printers with SureSupply, which infringe at least claims 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

18. Defendant Lenovo has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Lenovo manufactures, uses, sells, imports, and/or offers to sell infringing personal computers and other products, including but not limited to the Lenovo IdeaPad G560 and other Lenovo personal computers with Lenovo Smile Bar, which infringe at least claims 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

19. Defendant Lexmark has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Lexmark manufactures, uses, sells, imports, and/or offers to sell infringing printers and other products, including but not limited to the Lexmark Pinnacle Pro901 and other Lexmark printers with Lexmark SmartSolutions and Lexmark Printer Home, which infringe at least claims 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

20. Defendant Motorola has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Motorola manufactures, uses, sells, imports, and/or offers to sell infringing cell phones and other products, including but not limited to the Motorola Backflip and other Motorola cell phones with Motorola Help Center, which infringe at least claims 1, 3, 4, 13, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

21. Defendant Novell has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Novell manufactures, uses, sells, imports, and/or offers to sell infringing server operating software and other products, including but not limited to the Groupwise server, SUSE Linux Enterprise sever, and other Novel server products with Novell Support Advisor, which infringe at least 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

22. Defendant Samsung has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Samsung manufactures, uses, sells, imports, and/or offers to sell infringing printers and other products, including but not limited to the Samsung CLX-3175FW, Samsung ML-3471ND, Samsung CLP-315, and other Samsung printers with Samsung Universal Printer Driver, which infringe at least claims 1, 3, 4, 15, 22, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

23. Defendant Trend Micro has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the ‘565 patent. Trend Micro manufactures, uses, sells, imports, and/or offers to sell infringing antivirus and security products, including but not limited to the Trend Micro Titanium Antivrus, which infringe at least claims 1, 15, 27, and 30 of the ‘565 patent under 35 U.S.C. ง 271.

Some of these assertions are based on hardware, some on software, and the allegations of infringement with respect to claims infringed do not all match. A separate set of allegations under patent 7,222,078 focuses on using servers to collect data and under 5,999,908 on website surveys (also see the adidas complaint below).

The "Combay" Complaint related to patent 7,620,565 (covering Combay, Inc., Iconfactory, Inc., Illusion Labs AB, Michael G. Karr d/b/a Shovelmate, Quickoffice, Inc., Richard Shinderman, Wulven Game Studios,Electronic Arts, Atari, Take-Two Interactive, Rovio Mobile, and Square Enix):

16. Defendant Atari has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Atari makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Atari‟s Greatest Hits for iPhone and Atari‟s Greatest Hits for iPad, which infringe at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

17. Defendant Combay has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Combay makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Mega Poker Online Texas Holdem for iPhone, which infringes at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

18. Defendant Electronic Arts has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Electronic Arts makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to The Sims 3 for iPhone, which infringes at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

19. Defendant Iconfactory has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Iconfactory makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Twitterrific for iPhone, Twitterrific for iPad, and Twitterrific for Mac, which infringe at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

20. Defendant Illusion Labs has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Illusion Labs makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Labyrinth for iPhone and Labyrinth for Android, which infringe at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

21. Defendant Shovelmate has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Shovelmate makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to 69 Positions for iPhone, which infringes at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

22. Defendant Quickoffice has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Quickoffice makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Quickoffice Connect for iPhone, which infringes at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

23. Defendant Rovio has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Rovio makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Angry Birds for iPhone and Angry Birds for Android, which infringe at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

24. Defendant Shinderman has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Shinderman makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Hearts and Daggers for iPhone, which infringes at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

25. Defendant Square has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Square makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to Big Hit Baseball for iPhone and Big Hit Baseball for iPad, which infringe at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

26. Defendant Take-Two has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the „565 patent. Take-Two makes, sells, uses, imports, and/or offers to sell infringing applications, including but not limited to 2K Sports NHL 2K11 for iPhone, which infringes at least claim 27 of the „565 patent under 35 U.S.C. ง 271.

These are all software applications, and the allegations of infringement are all, at least for now, focused solely on claim 27.

The "adidas" Complaint related to patents 7,222,078 and 5,999,908 (covering BBY Solutions, Inc., Best Western International, Inc., CVS Caremark Corporation, Sam's West, Inc., Stanley, Black & Decker, Inc., The Container Store, Inc., The Teaching Company, LLC, Vegas.com, LLC, Vitamin Shoppe, Inc., adidas America, Inc.):

The assertions in this complaint focus on feedback solicitation (7,222,078), interactive chat (7,222,078), and website surveys (5,999,908).

Finally, the "Drivetime" Complaint related to patents 7,620,565, 7,222,078 and 5,999,908 (covering DriveTime Automotive Group, Inc., ESET, LLC, ForeSee Results, Inc., LivePerson, Inc., OpinionLab, Inc., The New York Times Company):

The assertions in this complaint focus on antivirus and security products (ESET only, 7,620,565), interactive chat, customer interactions, or interactive advertisements (the allegations differing by party, 7,222,078), , and website surveys (only OpinionLabs and ForeSee, 5,999,908).

So the allegations of infringement and basis for infringement are all over the place, covering different fact patterns, in each of these. As a consequence, it will be hard to maintain these as just four actions. Defendants will insist that they be divided. It will continue to be interesting to see how this plays out.

Do the Google and Apple licenses cover all of these parties? That remains to be seen, but it can't be discounted, and it shouldn't be discounted just because Lodsys has chosen to be extraordinarily aggressive in filing these complaints.

Are developers actually being driven from the U.S. market? Despite stories that are suggesting this, absent more extensive evidence than a handful of developers we should be skeptical.


  


Lodsys - Piling It On, But To What Purpose | 104 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Thanks.
Authored by: Anonymous on Friday, July 22 2011 @ 10:03 AM EDT
.

[ Reply to This | # ]

When in doubt, use an elephant gun
Authored by: eggplant37 on Friday, July 22 2011 @ 10:13 AM EDT
That's what it looks like to me. Plaintiff's lawyers think they
can get the Court to believe them when they say it will be
judiciously less taxing on the system, but of course, without
being able to establish a pattern of similar facts in all the
cases, nor any collusion on the part of any of these companies to
collectively infringe on the patents, there is no doubt these
suits will undoubtedly be severed into individual actions. I
wonder, how annoyed is the judge in this case going to end up
being?

[ Reply to This | # ]

corrections
Authored by: jsoulejr on Friday, July 22 2011 @ 10:21 AM EDT
n/t

[ Reply to This | # ]

Newspicks
Authored by: jsoulejr on Friday, July 22 2011 @ 10:22 AM EDT
n/t

[ Reply to This | # ]

Off Topic
Authored by: jsoulejr on Friday, July 22 2011 @ 10:23 AM EDT
n/t

[ Reply to This | # ]

COMES
Authored by: jsoulejr on Friday, July 22 2011 @ 10:24 AM EDT
n/t

[ Reply to This | # ]

can't wait to see big business strike back on lodsys
Authored by: designerfx on Friday, July 22 2011 @ 10:31 AM EDT
at least I hope so.

[ Reply to This | # ]

Printer driver infringing
Authored by: hardmath on Friday, July 22 2011 @ 10:58 AM EDT
Hey, I totally get this, because when you install a new
cartridge, the printer driver detects that and prints a sample
page soliciting your feedback on whether the alignment needs
tweaking.

Sigh. All your basis of opinion are belong to us.


---
Got to pay your dues if you wanna sing the blues. And you know it don't come
easy. (Starkey/Harrison, 1970)

[ Reply to This | # ]

At what point does # of defendants show obviousness?
Authored by: Anonymous on Friday, July 22 2011 @ 01:22 PM EDT
The one thing that strikes me by the ever increasing number of defendants is
that Lodsys is now in the position of saying "everybody stole this unique
idea"
yet one of the tests for patents is that it shouldn't be obvious.

At what point as Lodsys piles on defendants does it become apparent that the
patent(s) in question must, by the very nature of the sheer number of people
being sued and allegedly using the invention, be obvious.

I realize there are lots of nuances and subtleties when dealing with patents
and litigation, but after a certain point it would seem that wouldn't matter. If

you patent air and sue people that are breathing, and everybody's
"guilty"
then perhaps air is not so unique and breathing is obvious?

[ Reply to This | # ]

I find it troubling...
Authored by: Anonymous on Friday, July 22 2011 @ 05:29 PM EDT
... that Apple and Google even feed this troll in the first place.

I know they made a financial decision not to fight it, but the patent is so
bogus it shouldn't have ever issued.

--- nyarlathotep

[ Reply to This | # ]

Improper joinder?
Authored by: Anonymous on Friday, July 22 2011 @ 05:56 PM EDT
Isn't this pretty much the sort of joinder that's been thrown out in Texas
(attorney Evan Stone) and some of the other file-sharing suits? By that I mean
similar allegations but otherwise unconnected defendants with differing fact
patterns.

z!

[ Reply to This | # ]

Lodsys - Piling It On, But To What Purpose
Authored by: Anonymous on Friday, July 22 2011 @ 09:27 PM EDT
Normally I wouldn't try to feed the paranoia or anything,
but I'm curious about something. All of the developers that
have been targeted are either developing for Android or
iPhone--but nothing has been mentioned about the same
developers (or applications) on Windows Phones.

Could this be a way of demoting the iPhone and Android in
favor of Windows Phones--not by attacking the phones, but
attacking the developers? After all, if you make a phone
that no one makes apps for, who's going to want to buy it?

Have a great day:)
Patrick.

[ Reply to This | # ]

Piling it On: Purpose is Obvious
Authored by: BitOBear on Friday, July 22 2011 @ 09:45 PM EDT
If Plaintiff knows that if they brought any other cases then those later cases
would almost certainly be put on hold till this case was resolved.

If plaintiff expects to _lose_ in part or in chief then they don't get to get
anything out of other defendants.

So by piling on defendants, plaintiff expects to see at least _some_ settlement
talks and opportunities before their bogo-patent(s) are eviscerated.

In short, having put so many eggs into one basket to start, there is no point in
holding any eggs back now.

In game theory there is a rule about "independent trials" that
basically says that the faster path with fewer but more dangerous obstacles is
almost always preferable to the longer path with more less-dangerous events. [In
table top gaming, having large numbers of small engagements is called
"getting one-hit-pointed to death", a.k.a. "eaten by
rats".]

Every separate action Lodsys might initiate is more chances that paten claims
will be challenged, found invalid, or "narrowed" by some decision or
interpretation.

So they loaded up their shotguns and are going in all barrels in hopes of
hitting _something_ while their powder is still dry.

Not to mix my metaphors.

[ Reply to This | # ]

Canon USA
Authored by: Anonymous on Saturday, July 23 2011 @ 10:08 AM EDT
Funny thing is Canon USA, only distributes the
software. Lodsys is suing over. The Canon Europe
distributes the same software. Canon USA may
manufacture the listed printers, and but the firmware
is also just distributed. So Canon USA isn't a infringing.

[ Reply to This | # ]

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