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.
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.
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.
We asked Patrick Igoe for any tips to focus the search, and he
suggests the following:
Quick summary of what is needed:
You can find the four Lodsys patents here on our new Lodsys permanent page, with all the complaints and the dockets so far.
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.)