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To read comments to this article, go here
Apple Can Defend Its Apps Developers: Motion to Intervene Granted in Part ~pj
Friday, April 13 2012 @ 12:46 AM EDT

Almost a year ago, Apple filed a motion to intervene [PDF] in the Lodsys v. Combay patent litigation, specifically back in June of 2011, and today the court finally granted the motion, in part:
105 - Filed & Entered: 04/12/2012
SEALED MEMORANDUM OPINION and ORDER - Apple has satisfied each of the four requirements for intervention as a matter of right under Rule 24(a)(2). The Court finds that permissive intervention is also appropriate under Rule 24(b). To avoid any potential prejudice to Lodsys rights under the License Agreement such intervention shall be and is hereby limited to the issues of license and patent exhaustion. Apples Motion to Intervene is GRANTED-IN-PART to the extent and as specified herein. Motions terminated: [4] MOTION to Intervene filed by Apple, Inc.. Signed by Judge Rodney Gilstrap on 4/12/12. (ehs, ) Modified on 4/12/2012 (ch, ).
As you see, it's a sealed order, but in time, we'll be able to compare what Apple files with what it proposed to file [PDF], and working backwards, we'll be able to see why this is sealed.

Meanwhile, this is very important for the individual app developers Lodsys deliberately targeted. Lodsys opposed this motion (Apple's response; Lodsys's panicky response in opposition [PDF]), so this is a significant loss for Lodsys. Bullies never like it when someone as strong or stronger than they are shows up.

I don't see any relief that Apple was asking for that it didn't get, actually, unless the court is limiting it from being able to argue first sale. But with so many redactions, I can't say for sure. Over time, it'll become more clear.

Here's the heart of the proposed answer with counterclaim Apple filed and the relief it asked for:

44. As set out above, Apple is licensed to the patents in suit under the License. The License expressly permits Apple to offer and otherwise make available to its Developers products and services that embody the inventions contained in the patents in suit. Plaintiffís infringement claims against the Developers are based substantially or entirely on the Developersí use of products and services that Apple is authorized to provide under the License and which Lodsys claims embody the patents in suit.

45. Under the patent law doctrines of exhaustion and first sale, the Developers can use the products and services Apple provides to them free of claims of infringing the patents in suit. Therefore, Lodsysís claims against the Developers are barred by at least the doctrines of patent exhaustion and first sale....

First Counterclaim for Declaratory Relief

51. Apple realleges and incorporates herein by reference the matters set forth in paragraphs 1-50 above.

52. Lodsys has invoked federal patent law to control the post-sale use of Appleís licensed products and services. Absent a declaration and order as sought by Apple, Lodsys will continue wrongfully to assert patent claims that are subject to the License and therefore exhausted. An immediate, real, definite, and concrete dispute exists between Apple and Lodsys over whether the License and the doctrines of patent exhaustion and first sale preclude Lodsysís ability to sue and threaten Developers for using Apple products and services that allegedly embody the patents in suit.

53. A declaration that Lodsysís claims against the Developers are barred by the doctrines of patent exhaustion and first sale will render moot many, if not all, existing claims and defenses in this action. Apple is authorized under the License to offer and otherwise make available to Developers products and services that embody the patents in suit. To the extent that these products and services do embody the patents in suit, the Developers are permitted to use them free from suit by Lodsys under the doctrines of patent exhaustion and first sale.

54. Therefore, Apple is entitled to a declaration that Lodsysís claims against the Developers are barred by the doctrines of patent exhaustion and first sale....

WHEREFORE, Apple respectfully prays that (i) Lodsys take nothing against any defendant by way of the complaint, (ii) that Lodsysís Complaint be dismissed with prejudice, (iii) that the Court issue an order declaring that Lodsysís claims against the Developers are barred by the doctrines of patent exhaustion and first sale, and (iv) that the Court award Apple such other and further relief as it deems proper.

Now that the court has finally ruled on this motion, we can expect Apple to move quickly. Because Apple has shown it intends to defend these developers. And now it can.

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