The Orange View (on hiatus) Because Apple is great but it isn't perfect

23May/11Off

(Updated) Marco Arment is wrong about patents, or so they say

(Updated June 7, 2011 with Marco's quip. See note below.)

Is linking to two blog posts critical of highly-opinionated web developer Marco Arment twice as pleasing as just posting one? Quite possibly. The mouth of Brooklyn¹ was mouthing off about the Lodsys patent dispute last week.

Lodsys, you may recall, are the guys who claim to have patents on some bits of what is now the in-app purchase feature of iPhone apps. They just want a small portion of app developer's reevnues, they say. On the Build and Analyze podcast last week, Marco said developers should take the deal.

But as attorney Patrick T. Igoe notes, Arment is no lawyer and he's not in favor of the immediate cave-in to a patent pusher.

Developers should not take legal advice from the Internet, and especially not from a software development podcast. Whether it is expensive or not, see an attorney. Show the attorney the claim chart you received from Lodsys. Spend some time, perhaps, on the claim language that Lodsys left out of the claim chart and why they left it out. Assess whether you could even be capable of infringing the patent given your role in the Apple ecosystem. Then, discuss with your attorney whether to roll over based on cost concerns. At least be informed when you do so.

And "Dr Drang," who says he has consulted on patent litigation cases (pet peeve - I hate blogs with no obvious about page) looks at the patents in question in much greater depth and chides Arment for naiveté. Among other overlooked bits of the Lodsys offer is a phrase allowing Lodsys to change its currently minimal royalty rate at any time, say, right after a bunch of developers concede that they need to license it.

Marco’s mistake is to treat the Lodsys demand letter as if it were a bill. It’s not. It is, like every matter involving lawyers, an offer to negotiate. Whether the developers choose to negotiate individually (which seems stupid to me), as a group, or as a group under Apple’s wing (which is contingent on Apple’s response), they’ll have to do some negotiating at some time. And that will, unfortunately, cost them.

Notes:
¹Marco explained on the Build & Analyze podcast May 25 that he doesn't live in Brooklyn anymore. But I so closely associate him with the term "Brooklyn hipster" that it's hard to change the label. It took a couple of weeks for the mention to catch up with me as that's not a podcast I follow.

Posted by Aaron Pressman

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