Wanted: Prior Art to Invalidate Lodsys Patents

Article One Partners is at it again, this time with four patents in the cross-hairs owned by the company suing Apple App Developers for patent infringement — Lodsys.  Article One Partners has made a name for itself as the premiere crowd sourcing, prior art locating company in the world. Now they have three different studies (see below) aimed squarely at the four Lodsys patents.  In addition to being used against Apple App Developers, these four patents were also used earlier this week to sue the New York Times and others, and earlier still against Best Buy, Adidas, CVS and others. Indeed, it seems that Lodsys is becoming quite a nuisance for defendants, which places them at or near the top of the patent troll most wanted.

In an interesting twist, the Lodsys patents were at one time owned by Intellectual Ventures (IV), a massive patent holding company that owns the rights to more than 30,000 patents.  For the greater part of the IV history it did not engage in suing those it believed to be infringing, rather seeking to obtain as much licensing revenue without a direct patent infringement lawsuit.  It had long been speculated that IV was outsourcing its patent infringement litigation to those who would acquire certain patents from IV and then sue for patent infringement, but there was never any direct proof.  See Intellectual Ventures’ Patents Starting To Show Up In Lawsuits and Intellectual Ventures Takes Indirect Route to Court.

Given the Lodsys is now asserting patents acquired from IV in a variety of patent infringement litigations the old speculation about the possibility of IV outsourcing its patent infringement litigation has been rekindled.  According to Lodsys, inventor Dan Abelow sold his patent portfolio to IV, after which time IV licensed the patents to a number of companies.  Ultimately, IV sold all the rights (minus the already licensed) to the Abelow portfolio to a private rights ownership group, which then setup independent companies to focus on licensing the patent rights.

According to Lodsys, neither Dan Abelow nor IV has any investment, control, or knowledge of the specific licensing activities of Lodsys, which would presumably cover the patent infringement litigations.  See Lodsys Q&A.  Florian Mueller of FOSS Patents says he has seen no evidence suggesting that IV is in any way behind these patent infringement litigations in any way, see Credibility of Lodsys Assertions.  This would make sense given that the initial lawsuit was brought against numerous small players, namely Apple App Developers.  Those small players would seem too insignificant in terms of what revenue they could contribute to interest IV.  Furthermore, IV has started directly enforcing its own patents where appropriate.

In the midst of the soap opera saga unfolding as the result of Lodsys turning patent troll, the Article One network of individuals has sprung into action.  The Article One network is extensive and geographically diverse. They have over 1 million researchers worldwide signed up on their platform, so when a study is initiated each of those researchers are notified. These researchers are located all across the world, with 37% in the United States, 37% in Europe, 10% in Japan and 16% elsewhere. In addition to this geographic diversity nearly 50% of researchers hold advanced degrees. So far approximately 10,000 researchers have actually submitted prior art references to a study and more than $1 million in reward money has been paid out.

There are three separate Lodsys studies, as the open call request for prior art is called by Article One.  Each of the studies close on Monday, July 25, 2011, so there is a little more than 2 weeks to participate if you think you have knowledge of prior art that could be used to invalidate claims from one of the four Lodsys patents.  These separate searches are as follows:

1. Systems for Automated Collection of Information and Feedback Responsive

This Study relates to two patents (U.S. Patent No. 5,999,908 and U.S. Patent No. 7,133,834) that claim systems that enable the collection and transmission of information and feedback between users and providers of products.

2. Systems for Gathering Information from Units Across a Network

This Study relates to a system comprising: units of a commodity that can be used by respective users in different locations, a user interface, a memory within each of the units of the commodity, a communication element associated with each of the units of the commodity, and a management component. See U.S. Patent No. 7,222,078.

3. Customer-based Product Design Module

This Study relates to a component or unit of a system comprised of a memory; a transmitter; and a processor, coupled to the memory and to the transmitter. They are configured to: monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events, increment a counter corresponding to the trigger event upon detection of the occurrence of the trigger event, cause the display of a user interface, configured to probe for information regarding a use of the product, if the counter exceeds a threshold, cause the memory to store an input received from the user interface, and cause the transmitter to transmit the input to a server. See U.S. Patent No. 7,620,565.

It will be a while before we know what will become of these Lodsys patents and the various lawsuits, but in the meantime the search for prior art goes on.  Perhaps there will be requests for reexamination filed on one or more of the patents; indeed that seems likely if you ask me.  Someone really wants to find prior art, which is why Article One Partners is involved.  No doubt many of the larger defendants are also engaging in their own due diligence to locate prior art that will be useful for one purpose or another during litigation proceedings.

In any event, those faced with a lawsuit brought by a patent troll have little or no ability to turn the tables to create leverage.  Simply stated, those sued by patent trolls are targets and they might as well be wearing deer-like camouflage during hunting season.  I don’t understand why more defendants facing patent infringement litigation do not pursue a reexamination strategy, which can be an exceptionally effective way to take the fight to the patent troll.  You need to turn up the heat and make the patent troll fight to defend.

Things promise to get far more interesting in the months (and years) to come.