Would Apple’s Response to Lodsys Cover Android Developers?

The Lodsys lawsuits

About 6 weeks ago, Lodsys started suing mobile developers (mostly iOS, though at least one Android developer as well) for infringing on one or more of their patents related to developers using in-app purchase. Lodsys claimed that Apple was a license holder for these patents, but that this license did not extend to third-party developers. About 10 days later, Apple responded to these lawsuits with a letter to Lodsys, making it clear that Apple did not agree that the developers were infringing. Macworld published the text of this letter. Apple later filed a motion to intervene in the lawsuits against the iOS developers, as described by FOSS Patents.

I found two things interesting about Apple’s initial response to Lodsys:

  1. Apple did not attempt to challenge the validity of the patents in question.
  2. Apple’s explanation of why the developers were not infringing was very precise.

Challenging the Validity of the Patents

FOSS Patents theorized that Apple was likely to be contractually precluded from challenging the patents (at risk of losing their license to the patents). This is the likely explanation for item 1.

Apple’s Reasoning as to Why iOS Developers Are Not Infringing

Here’s a portion of Apple’s response:

Claim 1 claims a user interface that allows two-way local interaction with the user and elicits user feedback. Under your reading of the claim as set out in your letters, the allegedly infringing acts require the use of Apple APIs to provide two-way communication, the transmission of an Apple ID and other services to permit access for the user to the App store, and the use of Appleā€™s hardware, iOS, and servers.

Claim 1 also claims a memory that stores the results of the user interaction and a communication element to carry those results to a central location. Once again, Apple provides, under the infringement theories set out in your letters, the physical memory in which user feedback is stored and, just as importantly, the APIs that allow transmission of that user feedback to and from the App Store, over an Apple server, using Apple hardware and software. Indeed, in the notice letters to App Makers that we have been privy to, Lodsys itself relies on screenshots of the App Store to purportedly meet this claim element.

According to my reading of this1, Apple is saying that the iOS developers are covered under Apple’s license to the patents because Apple provides:

  1. the mobile device hardware (iPhone, iPod Touch, or iPad).
  2. the OS running on the mobile devices
  3. the APIs used for in-app purchase.
  4. the Apple ID used to identify the customer.
  5. the App Store that processes the in-app purchase.

How Android is Different

Google could claim all of the above for Android phones and Google Market except for #1, since Android phones are made by other companies (aside from Google’s Nexus line of phones).

Could this seemingly minor difference cause third-party iOS developers to be covered by Apple’s license while third-party Android developers would not be covered by Google’s license?

I can’t tell if Amazon’s Appstore for Android supports in-app purchases. Assuming it does, in-app purchases from its store would also cause #5 above to fall out of sync with Apple’s claims.