Google finally intervenes to help developers in Lodsys patent lawsuit

Google has finally intervened in a series of lawsuits against independent smartphone application developers and Lodsys, which saw app creators sued for utilising technologies within the search giant’s Android operating system, Wired has revealed.

On Friday, Google filed a request with the United States Patent and Trademark Office, calling for the organisation to reexamine two patents at the centre of legal disputes between Lodsys and application developers, to determine whether the claims within them were valid.

Lodsys first emerged in May, targeting iOS developers that were utilising Apple’s in-app purchasing feature, threatening to issue a patent infringement lawsuit to creators of applications that utilise the payment processing mechanism.

One developer, James Thomson, the lead developer of a popular scientific calculator iOS app named pCalc received warnings that he could be sued for patent infringement because the pCalc app allowed users to sign up and pay for a subscription within the app itself.

Lodsys asserted patent infringement claims against another eight iOS app developers and two Android developers including EA and Atari. Wanting to protect developers, Apple decided it would intervene, showing that the company was serious about stepping in on behalf of App Store developers that use the in-app purchasing components of Apple’s API’s.

The Cupertino-based company claimed that a licensing agreement it had with Lodsys would protect developers utilising its platform. Lodsys disagreed.

Apple says that no matter what resources Lodsys have at their disposal, it still doesn’t know how Apple’s internal technology works. Apple argues that only it knows that and should be allowed to intervene so that it is represented correctly.

Google’s senior vice president and general counsel Kent Walker told Wired.com in a statement:

“We’ve asked the US Patent Office to reexamine two Lodsys patents that we believe should never have been issued.

Developers play a critical part in the Android ecosystem and Google will continue to support them.”

Should Google have its reexamination granted, the company could save developers hundreds, if not thousands in legal costs, should they decide to fight Lodsys in the courts and not license its technologies.

Julie Samuels, staff attorney for the Electronic Frontier Foundation, doesn’t believe that the patent will be invalidated through the USPTO, but it would be “more likely is that the claim of the patent will be narrowed”.

Google intevenes as an “inter partes”, meaning it will now be involved in the rest of the proceedings between Lodsys and developers. However, the USPTO can still deny a stay, raising legal costs for smaller developers that need to pay for ongoing litigation expenses.

The search giant, despite arriving late in the proceedings, has taken a more aggressive approach than Apple. However, intellectual property expert Florian Mueller believes even this might not be enough:

While I agree with Google’s senior vice president and general counsel Kent Walker that those patents should never have been issued, I don’t consider those reexamition requests — unless they will be accompanied by more forceful and useful measures very soon — a serious commitment to supporting Android app developers against trolls. If this is all that Google does, it’s too little, too late, and calling it “half-hearted” would be an overstatement.

Let me make this very clear: reexamination of Lodsys’s patents certainlycould have positive effects further down the road. It’s possible (though by no means certain) that Lodsys’s ongoing litigation might be stayed – however, as Wired’s article explains, this happens in the Eastern District of Texas only “around 20 percent of the time”. In other words, there’s an 80% likelihood, just based on statistics, that Google’s reexamination request won’t delay Lodsys’s litigation.

Mueller adds that both Apple and Google have failed to provide developers with what they really need: “blanket coverage concerning both litigation costs and, very importantly, potential damage awards”. Until Apple and Google to provide that, Mueller suggests that developers license the patents held by Lodsys, to avoid greater costs in the future.