Lodsys targets app developers over patent infringement claims

This is a survival guide for app developers who are in the midst of the Lodsys patent war.

I'm a huge fan of Google's Android. As a full-time software engineer I've worked with a lot of platforms over the course of the last decade, and Android by far has one of the most enthusiastic and supportive developer communities I have encountered. It's because of this sense of familiarity and shared goodwill that the recent rash of alleged patent infringement charges by none other than the infamous Lodsys, LLC has me so angry.

Unless you just recently awoke from cryogenic suspension, I assume you've heard of Lodsys. That's good, because you won't learn much about the company from its website. Clicking on the "About Lodsys" link at www.lodsys.com reveals little more than the statement: "The patented technologies of Lodsys, LLC are available for licensing." You'll find no mailing address, telephone number, or picture of a sprawling R&D facility. The only contact information is a single email address: Mark.Small@lodsys.com.

Lodsys has been in the news often of late because it is sending letters of intent to file patent infringement claims against a large number of smartphone app developers. The key phrase to take away from that last sentence is app developers. Lodsys is not targeting Apple or Google directly, but rather developers of individual applications. I had the opportunity to talk with one such developer. In exchange for his candor, he has asked that I not use his real name.

Meet Diego, a developer targeted by Lodsys

Diego is an "indie" app developer from southern Spain. In his own words, there's no company, partners, or coworkers. There's just Diego. He currently has eight apps available in the Android Market: six free and two paid.

Diego posted a plea for help in the Google code forums early last week. After reading about his frustration and shock at having the dubious "honor" of being the first Spanish Android developer on record to find himself on the receiving end of a Lodsys attack, I contacted Diego and he graciously consented to an interview.

Francis: What was the very first thing that went through your mind when you received the letter from Lodsys? Diego: I could not believe it. I had no idea I, being an indie developer from Spain, could get such [a] letter. Francis: You've stated you currently have eight apps in the Android Market. Are they all being targeted? Diego: According to the documentation provided by Lodsys, only one is being targeted. But given the way this company behaves, I would not be surprised if I receive more extortion letters in the future. Francis: How long has the targeted app been in the market? Diego: I published the app on March 12th -- my birthday! Francis: How many downloads would you estimate you've had? How much do you charge for your app? Diego: According to the Google market console, in the five months since I've published my app there have been around 132,000 downloads of the free version and 1,350 downloads of the paid version. The paid version costs $3. Francis: Why do you think Lodsys targeted your app in particular? Diego: I have no idea. What I can guess from the claim chart is that it has something to do with the possibility of reaching the paid app from the free one. My app has a link to my webpage, where there is a link to the paid version in the market. At least those are the steps that the claim chart follows. Francis: Do you feel like you understand the allegations of infringement Lodsys is making against you? Diego: No. I've read the claim chart and the patents a few times and I don't get it. People mistakenly believe that the alleged infringement Lodsys lodges is for having in-app purchases. None of my apps have in-app purchases. I believe the claim is related to the workflow from my free app to the paid one. It's nonsense. Francis: What steps have you taken to protect yourself since receiving the notification from Lodsys? Diego: I've contacted an attorney, and a group of developers in Amsterdam that is organizing a "resistance" group with a lawyer (http://mur.mu.rs/?p=303). I've also tried to contact the EFF, but the contact person has not responded yet. Last but not least, I sent an email to legal-support@google. Francis: In regards to Google, do you think they are doing enough to protect the Android developer community from broad reaching patents like those Lodsys are currently using to target smartphone apps? Diego: In fact I missed a phone call from a number in Mountain View. I guess/hope it was Google, but they didn't call again. I tried to call that number, but nobody picks it up. What it looks like is that it took them a really long time to step ahead and say something, and right now, as a developer, I feel alone and lost. Francis: How much has this experience soured you on continuing to develop smartphone applications? Diego: I won't stop developing for Android. I'm also targeting iOS these days, and will surely have to confront this kind of problem there too. This is not a problem exclusive to a platform. Sometimes I'm tempted to just ignore Lodsys and the letter, but then I remember that someone took the time to write it and make the claim chart, so someone really hopes to win. I've even thought of just paying the patent license. As far as I know, it's not really expensive, just around 0.575% of the income, but it's not fair. They have patented something intangible.

You could be next

Stories like Diego's are popping up across Android developer forums with growing frequency. These types of stories both dishearten and alarm me. I have not received one of these threatening letters from Lodsys, but I can imagine that if I did/do, I'd feel much like Diego. What would I do? Where would I turn for help? It was this thought process that led me to write this post. Not to go on a rant about the morality of Lodsys's business tactics or the sorely needed reforms of the U.S. patent system, but with the goal of publishing a "how-to-survive" guide for developers who find themselves in the crosshairs of Lodsys and their likes.

How to survive charges of infringement