Android Developers get help from Google in Patent Lawsuit

Wired.com has learned that Google has intervened in an ongoing intellectual property dispute between Android smartphone application developers and East Texas based patent-holding firm Lodsys. This marks the first public move by the Mountain View Company to defend Android programmers from a patent troll lawsuit that's cast a cloud over the community.

Google says it filed a request with the United States Patent and Trademark office Friday for reexamination of two patents asserted by Lodsys. The request by Google calls for the USPTO to assess whether or not the patents' claims are valid.

“We’ve asked the US Patent Office to reexamine two Lodsys patents that we believe should never have been issued,” Google senior vice president and general counsel Kent Walker told Wired.com in a statement. “Developers play a critical part in the Android ecosystem and Google will continue to support them.”

Lodsys is currently suing 11 smartphone app developers for allegedly impending on patents U.S. 7,222,078 and 7,620,565. Lodsys claims its patents cover the use of in-app payments technology, which allows users to carry out transactions within the context of an application itself. This technology is used by countless app developers in their applications.  

Lodsys CEO Mark Small did not respond to an e-mail, and the company did not immediately respond to a telephone inquiry from Wired.com on Friday evening, after Google filed its request.

If the request for reexamination is granted, it could end up saving the developers and development studios – many of which have very small staffs, from a significant amount of legal fees.

“Reexaminations are often times a tool used to stay ongoing litigation,” said Julie Samuels, staff attorney for the Electronic Frontier Foundation, a non-profit digital rights advocacy group. “It’s much, much cheaper than federal litigation, which on average costs between two and five million dollars.”

The patent saga has been long and on the nasty side since Lodsys first began targeting application developers months ago. Lodsys began dispatching a series of cease and desist letters to iOS and Android app developers threatening legal action within a 21 day period if they did not negotiate to pay Lodsys a licensing fee for the use of the technology. The company is now suing 11 defendents whom range in size from small application development studios all the way up to major players in the game industry like Atari, Square Enix, and Electronic Arts.
Dan Abelow, the former owner of the patents who sold them in 2004, told Wired.com he was unable to comment on the matter.
Many intellectual property experts refer to Lodsys’ actions as “patent trolling” – the practice of using patents for little else outside of suing other companies for damages or coaxing them into licensing agreements.

Even though Google and Apple have licenses for Lodsys’ patents, the potential impact on both companies is clear enough. Regardless of who comes out on top with the lawsuit, the threat of potential litigation for iOS and Android developers may cause some of them to think twice before creating applications for the two mobile platforms.

“In this case, the strategic interest of Apple and Google is to make app developers happy, or at least comfortable,” said Florian Mueller, an intellectual property analyst who has covered the lawsuit exhaustively in his blog. (Defendants Rovio and Illusion Labs declined comment).

Google and Apple have approached the Lodsys lawsuit in different ways. Despite the fact that two Android developers were named as defendants – Rovio, the Finnish development studio behind Angry Birds, and Illusion Labs, a Swedish company that produces the game Labyrinth – Google has remained conspicuously quiet on the issue until now, rankling many in the development community.

In contrast, Apple has attempted to insert itself into the Lodsys lawsuit on behalf of developers. Apple filed a brief on Monday claiming it has the right to intervene in the case because Apple provides the in-app billing technology to its developers and retains its own liscense for the patents in question. As a result, Apple argues its license extends to coders who use Apple’s technologies as well.

Google’s current request for reexamination is their first major public action backing up its developer community. If the request for reexamination is granted, the patents in question could be amended to the extent that they won’t affect developers.

“It’s rare that an entire patent is invalidated through the USPTO,” said Samuels. “More likely is that the claim of the patent will be narrowed.”

It was confirmed by Google that they filed this request “inter partes,” which in effect means Google will be involved in the precedings throughout the entire process.

“Inter partes requests are usually more thorough,” said Samuels. Ninety-five percent of “inter partes” reexamination requests filed since 1999 have been granted by the USPTO.

Of course, there’s no guarantee that the court will grant a stay even if the USPTO grants the reexamination request.

“Courts have inconsistent track records of granting stays of litigation,” Samuels said. Especially in the eastern district of Texas — home to a federal court that is often favorable to patent litigation plaintiffs — where the lawsuit was filed. According to a 2009 study conducted by Matthew Smith, senior counsel at Foley and Lardner LLP, Eastern district courts grant motions to stay litigation pending reexamination around 20 percent of the time.

That could complicate things for the developer defendants, and potentially continue to cost them money for ongoing litigation expenses.

Still, Google’s request marks an entirely different strategy than Apple’s, and could potentially pay off for all parties involved.

Except, of course, for Lodsys.