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IP, Patent

Rare Patent Lawsuit Identifies Smartphone Apps

Last week, a lawsuit mentioned on FOSSPatents (and, eventually, everywhere) raised eyebrows because of its inclusion of smartphone applications as part of the accused systems.  Florian Muller writes:

What’s really disconcerting about this lawsuit is that it’s the first such lawsuit to attack — besides operating system vendors and device makers, which are routinely sued by patent holders — a number of companies because of their smartphone apps. I’m really afraid we’re now going to see more patent lawsuits against application developers. Hopefully this won’t ever affect little guys who can’t afford to defend themselves, but if there’s a major company behind an app, or if an app is commercially very successful, it can happen and it has now apparently started to happen.

via New smartphone patent suit also targets app developers: H-W Technology sues 32 parties (emphasis added)

I’m not really sure that this is literally the “first” lawsuit ever to accuse a smartphone application of infringing a patent.  After all, if a “normal” software application (like Microsoft Word, for example) is capable of infringing a patent, then certainly certain applications operating on a phone could be accused as well.

That said, we see fewer cases involving smartphone apps because literal, direct infringement (the strongest type of infringement claim you can make) requires a single actor to make, use or sell every element of a claimed device, or perform every step of a claimed method.  Many claims are simply too poorly worded to encompass most smartphone user activity. That’s not to say it isn’t possible, but even where it is, few of these patents end up in lawsuits simply because the amount of recovery fails to support the risk.  As echoed my Muller’s concern, a lot of companies and people that develop for various smartphone environments are extremely small entities that fail to attract the interest of venture capital.

Again, that’s not to say that it won’t happen, and smallish companies do tend to get sued for patent infringement.  However, when it happens, it usually isn’t for the same reasons that large companies get sued. In fact, there are a number of very common, specific reasons that small companies end up involved in infringement cases, most of them having little to do with money (or at least with getting money out of the company itself), but that’s a topic for another day.  For now, doom and gloom is among the predictions:

Although the app developers named in this suit are larger companies, how long will it be before smaller ones face a legal complaint? Few of the developers are well funded — or funded at all. Make it too dangerous for them to do business, and the industry could suddenly hit a pothole on the information superhighway.

via It’s Time for Mobile-Patent Disarmament Talks

As to H-W’s patent, Florian’s post notes a common thread:

All of the accused apps are basically mobile online shops: Amazon.com’s, eBay’s, Hotels.com’s, Expedia’s, Priceline.com’s, Orbitz Worldwide’s and Kayak.com’s apps, and Verizon’s VCast app

And as always, the reach of the patent (in this case 7,525,955) is governed by its claims, which (among many other elements) includes a user selecting “one of [a] variety of offers associated with … one of [a list of] merchants.”  The patent plainly doesn’t speak to the generic concept of applications operating on a smartphone, so having an app store presence isn’t likely to automatically place you in the cross-hairs.

Also, despite the fact that the media routinely wants to suggest that a patent’s reach is somehow coterminous with an oversimplified summary, I’m not suggesting that any mobile online shopping application that combines offers from multiple merchants necessarily practices the patent.  All I’m suggesting is that this is one specific point of differentiation that will be common to many application developers.

Update —

Via the comments, additional commentary suggests that Apple is not directly infringing:

Since I don’t believe a stock iPhone meets the claim limitations, I suspect the case against Apple may actually be for contributory infringement, which might explain the inclusion of the application developers.

via H-W v. Apple et al. NDTX

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Discussion

3 thoughts on “Rare Patent Lawsuit Identifies Smartphone Apps

  1. I think you are on the right track. I mentioned my belief that this was not a direct infringement case against Apple last week:

    http://www.applepatent.com/2011/03/h-w-v-apple-et-al-ndtx.html

    Posted by Patrick | April 5, 2011, 8:25 am
  2. In order for the plaintiff to win a patent lawsuit, they must prove to the court that they were in fact the original inventor, and that the defendant infringed their patent. The defendant must then prove one of the following in order to win the case:

    • The patent was not infringed
    • The patent is unenforceable
    • The patent was never valid

    Posted by Jared | April 11, 2011, 2:40 pm

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