Intellectual Property, Technology, and the Law

Mobile Madness – May 31, 2011

First and foremost, I hope everyone had a fun and safe Memorial Day holiday. It has always been one of my favorite holidays, for several reasons:

  • For some reason, I always forget about it until just days before. It’s embarrassing to schedule meetings at work on Memorial Day and have people decline them and include a sarcastic comment about my mental faculties. This actually happens almost every year. While this sounds like a bad thing, it really isn’t. Every year, I am pleasantly surprised with a holiday I wasn’t planning for. Sometimes, ignorance is indeed bliss.
  • Not that I really need one, but it’s a great excuse to get barbaric and throw some flesh on the grill and knock back a few cold ones. Yesterday, I even got a chance to do it in the middle of my cul-de-sac with a few neighbors and their families. Good times.
  • It always falls right in between my son and daughter’s birthdays. So there’s a lot of fun right before and right after. There’s nothing quite like seeing your kids enjoy their birthdays. I am not sure how long it will last though. I asked my son what he wanted for his 11th birthday and he said, after ruminating about it for a few moments, “um, I think I’ll just take $100. No, make that $150. There aren’t any video games out there that I want and I don’t want to choose between a Derrick Rose and LeBron jersey until the playoffs are over.” Birthdays have indeed become increasingly transactional in our family.
  • Most importantly, it’s a wonderful opportunity to reflect upon the preciousness of life. Whether or not you agree with the justification behind any war, we can all agree that those who died, and those they left behind, paid the ultimate price. We collectively honor their sacrifice.

With that said, I would like to introduce the first installment of what I hope becomes a regular feature on this blog. I am calling it “Mobile Madness.”

We are currently witnessing a historic and ubiquitous migration in technology. Not too long ago, in the late 1980s, personal computers were becoming commonplace in the American household. Yet, only two decades later, a major shift has started from these PCs to smartphones. My brother recently told me that he goes days without using a PC (whether desktop, laptop or netbook), because he can do all of his work and surfing with his iPhone.

With this migration, we see conflict. But the conflict is nothing like some of the skirmishes we saw in the PC days. The dynamics of the mobile market are multilayered and include a myriad of players, interests, and technology spaces. Battles loom over hardware, software, look and feel, just about anything. And they involve just about every single IPR (intellectual property right) imaginable. These are exciting times for an IP practitioner.

And thus, Mobile Madness. Since I’ve been scarce with time lately, I’ve got a bunch of issues to cover. I intend to have shorter blog posts in the future. But whatever, here you go! Without further ado…

A while ago, I wrote about the Apple v. Samsung “slap fight” that was poised to shake up the entire mobile marketplace. This slap fight continues, as during the course of its discovery efforts, Apple asked for and was granted its request to see future Samsung products in development, including their Galaxy S2 smartphone and its latest Tab 10.1 tablet. So what does Samsung do? They ask to see Apple’s iPad 3 and iPhone 5. Nice. Like I said before, it’s gonna be awful fun to see how this all turns out.

Speaking of the mobile marketplace and the looking standoff between Apple’s iOS, Google’s Android, Microsoft’s Mobile OS and whoever else is formidable enough to get involved, it turns out a Non-Practicing Entity (or NPE, also known pejoratively by the term “patent troll) has shaken things up in the mobile marketplace as well. Lodsys sent notices to a number of Apple iOS app developers that they may be infringing on one of their patents, which is titled “[m]ethods and systems for gathering information from units of a commodity across a network”, and is quite broad. Lodsys is asking for a 0.575% royalty from said app developers. There are several issues at play, which I detailed here, and which FOSS Patents, as usual, did a much better job of detailing here.

One of the interesting issues is that Apple has already taken a license from Lodsys, and it could be argued that an app developer would necessarily infringe Lodsys’ patent if they are forced to follow Apple’s API (which they generally are). So, would Apple step up to the plate and defend its app developers? Well, they did, and here is an excellent analysis of Apple’s letter and its implications.

You might wonder, if the Lodsys patent being asserted is so broad, why not go after all app developers, such as Android? Well, if you wondered it, you wondered well. It turns out Lodsys has approached Android app developers as well. I don’t know if Google/Android has taken a license to the Lodsys patent. And I am also not aware of a response from Google/Android at this point. But again, it will be interesting to see how they react, and how Lodsys reacts to the initial responses from the two goliaths.

I wish I could remember where I read it, but one person suggested that one way to hit Lodsys where it hurt would be for multiple app developers to  file DJ’s (Declaratory Judgments) against Lodsys in as many jurisdictions as possible. While this is humorous and creative, it appears to me that Lodsys may not have sent correspondences strong enough to give rise to the possibility of the other party filing a DJ, and there are several other issues with doing so. But kudos for creativity!

And finally, just this last week eBay/PayPal sued Google. On a number of different theories. I don’t even know where to begin with this one, but I will say that I finally understand why my wife loves to watch “The Real Housewives of New Jersey”. You’ve got unbelievably stupid acts, scandal, and extreme hubris. Google’s “Do No Evil” mantra is in danger of sounding silly. This is not good for Google, because the alleged facts aren’t pretty.

Put as quickly as I can put it, according to the complaint, Google was negotiating a partnership with PayPal for a mobile payment system. The deal looked like it was close to being formalized, but instead Google cut off talks and hired away some key people from eBay/PayPal. In fact, one of the initial hires Google made actually poached an employee from eBay/PayPal via Facebook! Amazing. But beyond the rather mundane issue of contract breaches and what-not, there are several other fascinating issues to watch. One is the entire concept of whether or not Google’s Android is truly “open.” I won’t waste your time trying to state the issues, because the aforementioned FOSS Patents does it much better than I do. Please check out their post on the issue.

Stay tuned for more blog posts about the mobile marketplace.

Copyright 2011, Pav S. Athwal. All Rights Reserved.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: