updated 05:30 pm EDT, Mon August 29, 2011
Lodsys sur-reply to Apple faces poor prospects
Lodsys showed potential strain in its lawsuit after it issued a sur-reply to Apple's own response. Originally submitted earlier in the month but just discovered Monday, the response makes the questionable claim that Apple can't motion because some of the app developers sued challenge the validity of the patents. Similarly, it contends that the license it has with Apple doesn't make it a licensor and makes generic claims towards Apple having not somehow satisfied a "heavy burden."
Apple is supposedly ignoring the claims themselves and the "plain and unambiguous" terms it has with developers, which supposedly puts all liability on them, according to Lodsys. A minor point also tries to center on language and claims that the "common issues of law and fact" Apple brought earlier doesn't automatically let it intervene, although Apple was using this more as supporting evidence than an automatic determination.
The issues with the claims are basic. By definition, any defendant not ceding ground in a patent lawsuit is disputing the validity of a patent. As the owner of the patents, Lodsys would have to be the licensor. While more contentious, Apple might point to app developers using its in-app purchasing API and thus that this portion of their apps would be covered.
An exhaustion of defenses at Lodsys could see Apple granted its motion to step into the case and could pose trouble for Lodsys in the end. Many of the claim charts it used to accuse developers of violating patents mention Apple technology as a root of the complaint and even cite violations that are within only Apple's side of the equation, such as the App Store. If successfully constructed, Apple's opposition could show Lodsys trying to double-dip on licenses and lose its battle.
Lodsys has been keen to keep Apple out of the case from the beginning and initially started its royalty campaign for in-app purchases under the assumption that it might not face a lawsuit at all, by targeting developers that couldn't afford to fight back. It eventually brought in EA, Rovio, and others only after Apple began using the meager finances of the mostly independent targets as justification for its intervention. [via GrokLaw]