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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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.


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