<story><title>Apple to Lodsys: you&apos;ll have to go through us to sue iOS devs</title><url>http://arstechnica.com/apple/news/2011/08/apple-tells-judge-intervention-against-lodsys-should-be-granted.ars</url><text></text></story><parent_chain></parent_chain><comment><author>grellas</author><text>A few thoughts:&lt;p&gt;1. Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, the court must grant Apple the right to intervene as of right if Apple can show: (1) that it has filed a timely motion to do so; (2) that it claims an &quot;interest&quot; in &quot;property&quot; that is the subject of the action; (3) that its ability to protect its interest in that property may as a practical matter be impaired or impeded if the legal action is allowed to be disposed of without its participation; and (4) that existing parties cannot adequately represent that interest.&lt;p&gt;2. Consistent with this rule, Apple&apos;s legal argument boils down to the idea that it has a license from IV to protect, and rights under that license, all of which will be impaired or impeded if Lodsys is allowed to pursue infringement claims against developers who develop apps for the environment to which Apple&apos;s license applies. Hence, Apple must be allowed to step in to defend the integrity of its license and to argue, based on that license, that Lodsys is barred by the doctrine of &quot;patent exhaustion&quot; from pursuing claims against the developers.&lt;p&gt;3. Apple thus argues that it needs to be in the case to protect its own interests, not those of the developers. Now, &lt;i&gt;de facto&lt;/i&gt;, this might amount to the same thing since Apple does not want to face a revolt among its developers. But there is irony here in that Lodsys is arguing, as one of its major points on why Apple should not be allowed to intervene, that Apple has no obligation legally to hold the developers harmless (i.e., based on Apple&apos;s agreements, the developers are on their own). In seeking to intervene to argue the patent exhaustion doctrine, then, Apple is saying it will protect its license rights primarily and developers only incidentally and, again, without undertaking any legal obligation to indemnify any developer.&lt;p&gt;4. All that said, &quot;patent exhaustion&quot; is a potent defense, the effect of which (if upheld) would be invalidate the patent for misuse. &quot;Misuse&quot; here lies in the idea of extending the exclusive rights afforded by the patent grant beyond their legitimate scope. Apple&apos;s ability to prove misuse, though, is by no means easy. To show misuse, it will essentially have to show that the IV license was intended to cover separate products (apps) that did not even exist when the license was granted and that do not constitute an integral part of the Apple product when sold. This will be tricky at best and obviously will take a party of Apple&apos;s sophistication and wherewithal to marshal the arguments and factual development effectively. That, of course, is why Lodsys does not want Apple in the case. It would much prefer to bully smaller and less sophisticated parties because that is how patent bullying works best.</text></comment>
<story><title>Apple to Lodsys: you&apos;ll have to go through us to sue iOS devs</title><url>http://arstechnica.com/apple/news/2011/08/apple-tells-judge-intervention-against-lodsys-should-be-granted.ars</url><text></text></story><parent_chain></parent_chain><comment><author>guildchatter</author><text>I hope the two-pronged defense works.&lt;p&gt;1) Apple tries to shield the iOS developers using its previous licensing agreement.&lt;p&gt;2) Someone else tries to get the patents invalidated.  &lt;i&gt;Several companies whose clients were targeted by Lodsys have filed preemptive lawsuits requesting declaratory judgements that Lodsys&apos; patents are invalid, and some independent developers led by former Apple engineer Mike Lee have formed a legal defense fund to fight Lodsys and other patent trolls. Even if Apple believes the patents wouldn&apos;t stand up to reexamination, it is suspected that the secret terms of the license agreement with Intellectual Ventures prohibits Apple from attempting to have the patents invalidated.&lt;/i&gt;</text></comment>