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On Thursday, July 21, 2011, attorneys for Lodsys LLC<\/a><\/strong>, a company rapidly becoming a reviled patent troll, filed an amended complaint<\/a><\/strong> in the United States Federal District Court for the Eastern District of Texas. (*) As a result of this amended complaint some big names in the gaming world have been brought into the ongoing patent litigation battles being waged by Lodsys. \u00a0Lodsys had already sued a number of Apple App developers and others such\u00a0as Best Buy and the New York Times, see here<\/a><\/strong> and here<\/a><\/strong>. \u00a0More specifically, as a result of the filing of this latest complaint Lodsys has brought patent infringement charges against Atari Interactive, Inc. and Electronic Arts, Inc. (NASDAQ:ERTS<\/a><\/strong>), among others. But in the mind of the general public the highest profile defendant to date will almost certainly be\u00a0Rovio Mobile Ltd., the maker of the extraordinarily popular game Angry Birds<\/a><\/strong>, which is available for iPhone, iPad and Android, among other platforms.<\/p>\n The amended complaint filed by Lodsys levels nearly identical charges against all the defendants, asserting patent infringement of U.S. Patent No. 7,620,565<\/a><\/strong> and U.S. Patent No.\u00a07,222,078<\/a><\/strong>. \u00a0Illustrative of the charges leveled by Lodsys are the two paragraphs relating to the alleged infringement associated with Angry Birds. \u00a0Paragraph 23 states:<\/p>\n Defendant Rovio has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and\/or through the inducement of others, one or more of the claims of the ‘565 patent. Rovio makes, sells, uses, imports, and\/or offers to sell infringing applications, including but not limited to Angry Birds for iPhone and Angry Birds for Android, which infringe at least claim 27 of the ‘565 patent under 35 U.S.C. \u00a7 271.<\/p><\/blockquote>\n Paragraph 36 states:<\/p>\n Defendant Rovio has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and\/or through the inducement of others, one or more of the claims of the ‘078 patent. Rovio makes, sells, uses, imports, and\/or offers to sell infringing applications, including but not limited to Angry Birds for iPhone and Angry Birds for Android, which infringe at least claims 1 and 24 of the ‘078 patent under 35 U.S.C. \u00a7 271.<\/p><\/blockquote>\n While there is not much to go by with such sparse allegations, by patent infringement standards these allegations are extremely detailed, which speaks volumes about what plaintiffs are allowed to get away with relative to asserting a claim of patent infringement. \u00a0At least Rovio is told which claims most likely are the claims that are being infringed. \u00a0Sadly, however, it is frequently (if not typically) enough to start a patent infringement lawsuit with vague assertions, which is why being a patent troll has become such big business in the United States. \u00a0All you need is a patent, an attorney who will take your case on contingency (**) and a few hundred bucks to file a lawsuit and you too could sue someone for some unspecified activities that together constitute some unspecified type of patent infringement on one or more unspecified patent claims.<\/p>\n Lodsys first appeared on the scene several months ago when it started chasing Apple App Developers<\/a><\/strong> and demanding that they take a license to the Lodsys patent portfolio<\/a><\/strong>, and then later going after Google Developers<\/a><\/strong> who provide Apps for the Android operating system.<\/p>\n Upon learning that Lodsys was chasing its App Developers, Apple entered the fray with a shot across the bow. \u00a0In\u00a0a letter from Apple\u2019s Senior Vice President & General Counsel, Bruce Sewell, Lodsys was told in no uncertain terms: \u201cThere is no basis for Lodsys\u2019 infringement allegations against Apple\u2019s App Makers. Apple\u2026 is fully prepared to defend Apple\u2019s license rights.\u201d \u00a0According to the letter sent to Mark Small, Lodsys\u2019 Chief Executive Officer, Apple is a licensee of each of the four patents in the\u00a0\u00a0Lodsys patent portfolio and the terms of the license allow Apple to grant sub-licenses to Apple App developers. \u00a0According to Sewell\u2019s letter, \u201cLodsys\u2019s infringement allegations against Apple\u2019s App Makers rest on Apple products and services covered by the license.\u201d<\/p>\n Based on the limited information available to date, it does seem like there is a generous double-dip approach to what Lodsys appears to be doing at least with respect to Apple App Developers. \u00a0After all, when Lodsys and Apple entered into a patent licensing deal what did Lodsys think was going to happen? \u00a0While not impossible, based on what I know about the quality of legal work done on behalf of Apple I find it difficult to believe they would have taken a license that they didn’t have reason to believe would cover their App Developers. \u00a0After all, Apple facilitates App Development<\/a><\/strong> for their various platforms by sharing the technical information necessary to make sure the Apps work properly.<\/p>\n Notwithstanding, Lodsys is becoming a real pain in the neck for App Developers and for those who rely on App Developers. \u00a0According to The Guardian<\/a><\/strong>, “App developers are withdrawing their products for sale from the US versions of\u00a0Apple’s App Store and Google’s\u00a0Android\u00a0Market for fear of being sued by companies which own software patents…”<\/p>\n But why is Lodsys going after App Developers? \u00a0On their blog Lodsys explains<\/a><\/strong>\u00a0why they are going after Application developers and websites rather than operating system vendors and device manufacturers:<\/p>\n The economic gains provided by the Lodsys inventions (increase in revenue through additional sales, or decrease in costs to service the customer) are being enjoyed by the business that provides the product or service that interacts with the user. Since Lodsys patent rights are of value to that overall solution, it is only fair to get paid by the party that is accountable for the entire solution and which captures the value\u2026<\/p><\/blockquote>\n Who knows why they are\u00a0really<\/em>\u00a0going after App developers, but the fact that they are low hanging fruit \u2014 easy targets, sitting ducks even \u2014 no doubt played a part. \u00a0It is becoming an increasingly popular troll strategy to sue exceptionally small companies and individuals. \u00a0When faced with a small payment demanded to license patents versus the large cost of fighting many, if not most, small companies and individuals will simply fold and make the extortion-like payment even when the fully believe (or know for certain) they do not infringe the asserted patents. \u00a0While that might be a part of the Lodsys strategy it seems that perhaps they are trying to be the biggest pain they can possibly be, thereby forcing the operating system vendors and device manufacturers to enter into an expensive blanket license that covers App Developers.<\/p>\n Of course, Apple believes they have already acquired a blanket license that covers their App Developers. \u00a0In the aforementioned Apple letter\u00a0Sewell further explained:<\/p>\n Through its threatened infringement claims against users of Apple\u2019s licensed technology, Lodsys is invoking patent law to control the post-sale use of these licensed products and methods. Because Lodsys\u2019s threats are based on the purchase or use of Apple products and services licensed under the Agreement, and because those Apple products and services, under the reading articulated in your letters, entirely or substantially embody each of Lodsys\u2019s patents, Lodsys\u2019s threatened claims are barred by the doctrines of patent exhaustion and first sale.<\/p><\/blockquote>\n Meanwhile, the industry is not sitting still. \u00a0Article One Partners<\/a><\/strong>, who\u00a0has made a name for itself as the premiere crowd sourcing, prior art locating company in the world, has three different studies aimed squarely at the four Lodsys patents. \u00a0 See Help Article One Save the Angry Birds!<\/a><\/strong> \u00a0The Article One network<\/a><\/strong> is extensive, geographically diverse, well educated and tech savvy. They have over 1 million researchers worldwide signed up on their platform, approximately 10,000 researchers have actually submitted prior art references to a study and more than $1.4 million in reward money has been paid out to those finding useful prior art. \u00a0So if you are a fan of Angry Birds or you just hate the assertion of patents that shouldn’t have been granted in the first place, sign up to be an Article One researcher<\/a><\/strong>. \u00a0You might just help save Angry Birds, or find great prior art for one of their other studies, which could put some extra money in your pocket.<\/p>\n In any event, this patent battle looks like it will be a long one. \u00a0To use a baseball analogy we are only in the first inning, and the top of the first at that, so stay tuned!<\/p>\n – – – – – – – – – – – – – –<\/p>\n