Mobile developers strike back against patent trolls

It’s hard to believe that a tiny firm in East Texas could shake up the mobile apps world all by itself. But Lodsys, a company that sits on piles of patents and uses them as leverage in lawsuits, has done just that. It started in May with attacks on small iOS developers. Apple and its lawyers came to their defense, but the move only seemed to embolden Lodsys, which has started targeting Android developers.

Now, I’m pleased to report, the developers are fighting back with Operation Anthill. Mike Lee, a well-known developer and founder of Amsterdam-based development initiative Appsterdam, is leading the charge. “If you step on an anthill, you’ll soon be covered in swarming, biting ants. You could, in theory, crush them one by one, but it’s much easier to just avoid anthills,” he wrote.

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Lee is prone to mixing his metaphors, calling Lodsys a “blood-sucking tentacle” in the same post, but Anthill was launched as Lodsys continued to escalate its attack. It’s become clear, says patent reform advocate Florian Mueller, that “Lodsys is not afraid of suing deep-pocketed app developers.” Indeed, that bunch has already gone after big companies, including Hewlett-Packard, Brother International, Adidas, Best Buy, and the New York Times, which are being sued for things like ad click tracking, questionnaires, and live chat. The most recent lawsuit brings the total of firms being sued by Lodsys to 37, he says.

Now the FUD has crossed the Atlantic to the United Kingdom, where developers have begun to drop out of Apple’s App Store, fearing they may be the next to face the wrath of Lodsys. (For the record, Lodsys has a blog where it states its position. I don’t buy it for a nanosecond, but here’s its side of the story as of late May, the most current post.)

I’d seen the initial attacks on small developers as a serious annoyance, but not a huge deal unless you were personally in the crosshairs. But I underestimated the problem. Mobile apps depend on the development and maintenance of a complex ecosystem that includes device makers, platform developers, and app developers. The “patent trolls,” as Julie Samuels, a staff attorney for the Electronic Frontier Foundation, calls them, are threatening to undermine that structure.

“Platforms such as iOS and Android allow small software developers the ability to widely distribute their work, which — for obvious reasons — is good for both developers and consumers. Just as these developers were finding new audiences, the patent trolls decided they wanted a piece of the action and started sending cease-and-desist letters demanding license fees, and in some instances even suing,” she wrote recently.

Developers fight back Lee and his allies have retained Michael McCoy, a Texas intellectal property lawyer who will help create what the developers have termed the Appsterdam Legal Defense Fund.

Legal action will be the start of our three-pronged attack, Lee says. “Next we’ll take the fight to Washington, D.C., raising a wall of legislation against future attacks. Imagine a law that allows small software companies to opt out of the patent system.

“We will also mobilize the many talented designers and evangelists in our community to launch a massive media marketing campaign to let the public know that small businesses, jobs, and the economy are being threatened by parasites,” Lee says.

Lee and his allies are right to call for patent reform, of course, and there’s a bill nearly through Congress that would mark significant progress on this front. The Patent Reform Act of 2011 would move the United States to a “first to file” patent system similar to most of the rest of the developed world. By contrast, the U.S. system relies on a determination of who invented first, which often leads to litigation.

For a while it looked like the act, which also includes a number of other needed reforms, was headed for President Obama’s desk, but a dispute over funding has stalled it. Funding is a huge deal, because the Patent Office is grossly underfinanced, which leads to ridiculously long delays and means that employees don’t have the time to research the complex issues raised by patent applications.

There are some people who believe the act is flawed, saying it might impose hurdles that small companies would have difficulty surmounting. I have yet to make up my mind on this one and welcome feedback on it.

Finally, I want to suggest that you listen to an outstanding radio documentary, “When Patents Attack,” that aired on National Public Radio earlier this summer. It is excellent, unless your name is Nathan Myhrvold, whose company Intellectual Ventures does not come off so well since it airs allegations that the former Microsoft exec is himself a patent troll. But that’s another story.

I welcome your comments, tips, and suggestions. Post them here (Add a comment) so that all our readers can share them, or reach me at bill.snyder@sbcglobal.net. Follow me on Twitter at BSnyderSF.

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