Google has intervened in an ongoing intellectual property dispute between smartphone application developers and a patent-holding firm, Wired.com has learned, marking the Mountain View company’s first public move to defend Android coders from a patent troll lawsuit that’s cast a pall on the community.
The company says it filed a request with the United States Patent and Trademark office Friday for reexamination of two patents asserted by East Texas-based patent firm Lodsys. Google’s request calls for the USPTO to assess whether or not the patents’ claims are valid.
“We’ve asked the US Patent Office to reexamine two Lodsys patents that we believe should never have been issued,” Google senior vice president and general counsel Kent Walker told Wired.com in a statement. “Developers play a critical part in the Android ecosystem and Google will continue to support them.”
Lodsys is currently suing 11 smartphone app developers for allegedly infringing the two patents, U.S. 7,222,078 and 7,620,565. Lodsys claims its patents cover the use of in-app payments technology, which allows users to carry out transactions within the context of an app itself. Countless app developers use in-app payments technology in their applications.
Lodsys CEO Mark Small did not respond to an e-mail, and the company did not immediately respond to a telephone inquiry from Wired.com on Friday evening, after Google filed its request.
If Google’s request for reexamination is granted, it could end up saving the developers and development studios — many of whom are composed of a handful of staffers — from large litigation fees.
“Reexaminations are often times a tool used to stay ongoing litigation,” said Julie Samuels, staff attorney for the Electronic Frontier Foundation, a non-profit digital rights advocacy group. “It’s much, much cheaper than federal litigation, which on average costs between two and five million dollars.”
Since Lodsys first began targeting application developers months ago, the patent saga has been long and messy. The firm originally dispatched a series of cease and desist letters to iOS and Android app developers in May. The letters threatened legal action within a 21 day period if developers did not negotiate to pay Lodsys a licensing fee for the use of the technology. The company is now suing 11 defendants, ranging from small app development studios to major game companies like Atari, Square Enix and Electronic Arts.
Dan Abelow, the former owner of the patents who sold them in 2004, told Wired.com he was unable to comment on the matter.
Lodsys’ actions are what many intellectual property experts refer to as “patent trolling” — the practice of using patents for little else outside of suing other companies for damages or coaxing them into licensing agreements.
Both Google and Apple have licenses for Lodsys’ patents, so Lodsys has been going after third-party developers instead. But the potential impact on Apple and Google is clear enough. Whether or not Lodsys wins its lawsuit, the threat of potential litigation for iOS and Android developers may cause them to think twice before creating apps for the two mobile platforms.
“In this case, the strategic interest of Apple and Google is to make app developers happy, or at least comfortable,” said Florian Mueller, an intellectual property analyst who has covered the lawsuit exhaustively in his blog. (Defendants Rovio and Illusion Labs declined comment.)
But despite the fact that two Android developers were named as defendants — Rovio, the Finnish development studio behind Angry Birds, and Illusion Labs, a Swedish company that produces the game Labyrinth — Google has remained conspicuously quiet on the issue until now, rankling many in the development community.
Apple, in contrast, has attempted to insert itself into the Lodsys lawsuit on behalf of developers. On Monday, Apple filed a brief claiming it has the right to intervene in the case because Apple provides the in-app billing technology to its developers and retains its own license for the patents in question. Therefore, Apple argues, its license extends to coders who use Apple’s technologies as well.
Google’s request for reexamination is the company’s first major public action backing up its developer community. If a reexamination is granted, the patents in question could be amended to the extent that they won’t affect developers.
“It’s rare that an entire patent is invalidated through the USPTO,” said Samuels. “More likely is that the claim of the patent will be narrowed.”
Google confirmed they filed this request “inter partes,” which essentially means Google will be involved in the precedings throughout the entire process.
“Inter partes requests are usually more thorough,” said Samuels. Ninety-five percent of “inter partes” reexamination requests filed since 1999 have been granted by the USPTO.
Of course, even if the USPTO grants the reexamination request, there’s no guarantee that the court will grant a stay.
“Courts have inconsistent track records of granting stays of litigation,” Samuels said. Especially in the eastern district of Texas — home to a federal court that is often favorable to patent litigation plaintiffs — where the lawsuit was filed. Eastern district courts grant motions to stay litigation pending reexamination around 20 percent of the time, according to a 2009 study conducted by Matthew Smith, senior counsel at Foley and Lardner LLP.
That could complicate things for the developer defendants, and potentially continue to cost them money for ongoing litigation expenses.
Still, Google’s request marks an entirely different strategy than Apple’s, and could potentially pay off for all parties involved.
Except, of course, for Lodsys.
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