Monday, May 23, 2011

Apple responds to Lodsys

Apple finally has responded to Lodsys with a letter from Apple Senior VP and General Counsel Bruce Sewell.

MacWorld tidily sums up Apple's legal interpretation of Lodsys' contentions:
These developers aren’t infringing Lodsys’s patents, because they’re using Apple software and hardware to provide the functionality that Lodsys alleged needed licensing. Apple’s point is that, since the technology is Apple’s, Apple’s license is sufficient.
That's pretty much the case that third-party developers have been making all along, and it's the reason they've been agitating for Apple to do something. These words, from the opening paragraph of Sewell's letter, must have those developers breathing huge sighs of relief:
There is no basis for Lodsys’ infringement allegations against Apple’s App Makers. Apple intends to share this letter and the information set out herein with its App Makers and is fully prepared to defend Apple’s license rights.
Now, you can parse this statement quite legalistically and note that Apple has not declared it will defend those developers. Given Apple's legal theory that its own license for the patent(s) in question suffices to cover its developers' use of the licensed technology, it's hard to imagine Apple not weighing in on any patent-infringement litigation Lodsys chose to pursue against those developers. However, that doesn't automatically mean it will pay their legal fees if Lodsys sues.

I maintain, though, that Apple knows it cannot afford to leave those third-party developers out in the cold. Those developers, especially on the iOS side, make Apple's products attractive to consumers. If Lodsys does sue one of those developers on the basis of the infringement it alleged in its notice letters, I think Apple will arrange to defend the developer somehow. I will also bet that Apple's legal team took ten days to respond to Lodsys in part because it needed to figure out how it would defend such a developer without causing adverse fallout for Apple itself.

No comments:

Post a Comment