The Lodsys Lawsuit and Apple’s Opportunity

So Lodsys made good on its threat. This really isn’t surprising. They sent the demand letter and now they’ve filed suit.

Lawsuits are filed every day. Crooks sue homeowners for tripping over the sprinkler when breaking in. Crazy stuff happens. All you need to file a lawsuit is a few pieces of paper and the filing fee. The trick, as Lodsys will discover, is proving your case.

I view these lawsuits as a crossroads for Apple. They could parachute in and protect their developers or they could abandon them as they enter the meat grinder that is patent litigation.

It seems to me that there really is only one choice for Apple, to step in and defend. There are a lot of reasons for this starting with the most important, it is in Apple’s own best interest. If Apple lets developers get sued for using Apple’s API’s, developers are going to to go elsewhere. Gold rush or not, nobody wants to get sued. While I’m sure the developer agreement has some draconian terms that say Apple has no responsibility, I don’t think Apple is going to leave these developers hanging out this way.

While the cost of patent litigation is truly daunting, Apple has the money and is already well lawyered-up. None of these defendants are in a position to defend themselves as well as Apple could.

Finally, stepping in is a huge win for Apple on the public relations front. Developers will see that and the iOS will benefit. If Apple were to take the other route and and leave the developers on their own to deal with this litigation, the exact opposite would happen.

As I’ve said before, I don’t possess a lick of knowledge about how to run a patent case but I have seen first hand the way litigation kills small companies. I suspect that in the next 30 days, the lid will come off and we will find out how far Apple is willing to go for its developers. For everyone’s sake (including Apple) I hope it is a long way.

MacSparky.com is sponsored by Bee Docs Timeline 3D. Make a timeline presentation with your Mac.

Home Screens – Josh Barrett

Josh Barrett(Twitter) is the publisher of Tablet Legal the premier iPad site for lawyers. Josh’s site includes tons of practical tips about getting the most out of your iPad and is useful to everyone. Josh and I became friends at the ABA Techshow. Josh is really smart and I recommend subscribing to his site. So Josh, show us your home screen.

How does the iPad fit in your workflow?

Like you, David, I’m a practicing lawyer a nerdy blogger and a family man. My iPad is a big part of my workflow in each of these areas. It helps me get more done with less friction so I can spend more time kicking the soccer ball with my kids, trying to write better on my blog and helping my clients.

My main work axe is a Windows PC because that is what my firm has deployed. Otherwise I use Macs at home and iOS devices exclusively.

What is most interesting about your home screen?

What usually strikes people about my iPad home screen is that it isn’t full. This might seem silly, but I like the aesthetic of a “composed” home screen, especially on the iPad. It also turns out that I have everything I use heavily on that home screen.

I have a folder for my “work” apps which sort of creates two “contexts” on the home screen. The default context includes mail, contacts, maps, music, my to do list manager and the like. The folder context contains my main productivity apps that I often use in conjunction with one another. The folder may introduce an extra tap or two in my workflow but the organization makes sense to me and seems to reduce mental friction while working. I named the folder “Ship it” as (1) an homage to “cranky” Internet guy Merlin Mann and (2) a fun reminder to me to get back to work.

What is your favorite app?

The app that has me most intrigued right now is probably Zite, the news app. The “Pandora of news” is the best way I have heard it described and I think that fits perfectly. Excited to see how this technology develops

My most heavily used app would probably be a combination of Reeder and Instapaper. These apps have transformed the way I interact and network with clients. I am able to stay informed about goings on in my clients’ industries through RSS feeds and I consume, share and archive articles I want to read through Instapaper.

Which app is your guilty pleasure?

MLS MatchDay, I guess. I have been a huge supporter of the Portland Timbers for years and this year they entered the MLS. The app is great with live video of matches (if not blacked out), highlights (often posted within minutes of the action), news and the like. Home games are my time to really blow off steam with the Timbers Army or share quality time with the family.

What is the app you are still missing?

More of an iOS feature I’d say, and that is better file management. As a lawyer like you, my work lives and breathes by files of all sorts of formats, versions, collaborators and the like. Dropbox solves a lot of this but I’m really hoping iOS 5 does something really special in this area.

What is your favorite feature of the iPhone/iPad?

Two things for me:

  • Portability with Lots of Power: This ensures I always have a great tool right at hand. I used to have to think about whether to bring a laptop (seems like I’d always guess wrong). Now I don’t have to decide. This is less of an issue now because of the new MacBook Air, but I don’t have one of those. Until I do, having the power of the iPad in an almost unnoticeable form factor is terrific.

  • Focused Work Environment: Because the iPad really becomes whatever it is you are working on, I find I stay focused and productive while using it. Also, even being a heavy user since the beginning, I still find the experience of using the iPad a treat. I can’t think of many of my tools that I can say that about. I have said it before, but there is something qualitatively different about engaging with your work on the iPad. Kudos to Apple for the product and the developers for coming up with new ways to do things.

Anything else you’d like to share?

Folks often ask about my wallpaper. It is a photo I made of the Lower Latourell Falls near my home in Oregon. Photography is a hobby of mine. Lots of great waterfalls out here to shoot.

Thanks for sharing my home screen with your readers!

Thanks Josh.

About Lodsys

One of the cardinal rules of this website is that I will never provide any legal advice. Not only is this to keep me from getting sued for malpractice but also because this part of my life is separate from that part of my life. Nevertheless, people have asked and I think it is time to weigh in with my own thoughts.

First a little background

I don’t practice intellectual property law. I don’t know anything about it. I have never represented a client concerning an intellectual property issue. I have no more knowledge about this stuff than any of the other Internet carnival barkers out there. If you read anything in this post and used it to make a legal decision in your own life, that would make you a moron. If you’ve got a legal problem, get a lawyer.
The one thing I am sure about when an intellectual property issue arises for one of my clients is to run, not walk, to the nearest IP specialist and hand them off.

What I also know is that patent and trademark cases are one of the most efficient ways to kill a company. It is like terminal cancer, heart disease, and a hernia all rolled up into one ball of pain. I tell my clients that litigating in the patent court is the same as building a bonfire of $100 bills. Burn baby burn. Perhaps it’s not clear, but I am not a fan of patent and trademark litigation.

What we know, now

It is undisputed that Apple entered a license agreement with Lodsys. Nobody on the outside, however, has seen it. I suspect somewhere in that agreement is a critical paragraph that talks about the extent and scope of the license. It either applies to independent app developers using the Apple produced API or doesn’t. That is what a lot of very expensive lawyers are going to spend the next year arguing about and ultimately, barring settlement, a smart person in a black robe will decide.

Before Apple went public on this, one possible outcome was that this matter would just go away. Indeed, the first draft of this post included an extensive discussion of this possibility. I reasoned that if Apple’s own reading of the license agreement was that the license didn’t extend to independent app developers, Apple would quietly enter negotiations with Lodsys to amend the agreement, write a check, and be done with it. This would be done quietly because Apple does not want to open the door for every other software license agreement and, frankly, because it is Apple.

That did not happen. To the contrary, Apple very publicly states that it has reviewed the license agreement and believes it applies to the app developers. I suspect Apple attorneys burned the midnight oil during the last week reaching that conclusion so such a definitive statement could be made.

I don’t think Apple has the disdain for its developers that some imply. Nor do I believe they will leave developers in the lurch. The stakes are too high for Apple. If independent app developers can get sucked into intellectual-property litigation at the drop of a hat, a lot of them would leave the platform. I certainly would. I’m happy that Apple has stepped in. What started out looking like David versus Goliath now looks like Goliath versus the Imperial Death Star.

Although I’ve seen none of the underlying documents in this case and don’t pretend to understand the patents at issue, I suspect this matter really boils down to a matter of contract. The Lodsys/Apple license is either broad enough to cover these app developers or not. In either case, I suspect Apple is going to do right and all future Apple software licenses just got about five pages longer to make sure this never happens again.

MacSparky.com is sponsored by Bee Docs Timeline 3D. Make a timeline presentation with your Mac.

Home Screens – Brett Kelly

Brett Kelly (twitter) really likes Evernote. He likes it so much that one day he just decided to write a book about it, Evernote Essentials, which became the definitive guide for Evernote. I had heard about Brett but never realized, until recently, that he lives near me. So Brett and I got together for breakfast and immediately felt like old friends. Brett is also now publishing some well-produced Evernote screencasts. In addition to all other pursuits, Brett loves his iPhone. So Brett, show us what is on your home screen.

I have a dual-purpose philosophy for home screen apps: these 16 apps are comprised of a) apps that I really like and use regularly and b) apps that I want to use more. I find that if I see an app when I unlock my phone, I’m more likely to think about firing it up. This obviously depends a great deal on the app in question as well as the time and place, but it’s helped me to do better at adopting apps whose potential is clear.

What is most your most interesting app?

My most “interesting” home screen apps are probably Instacast and Evernote (which I keep in the dock, so that may disqualify it from the “home screen” category). The former has completely changed how I consume podcasts on my iPhone. Before Instacast, getting new podcast episodes required either syncing with iTunes or downloading them piecemeal using the iTunes app. Other than occasionally moving music I’d purchased on the phone into iTunes, podcasts were the only reason I ever synced my iPhone. Instacast lets me bypass that whole process by allowing me to add/edit/delete podcast subscriptions and download new episodes, all from within the app. It’s a bargain at ten times the $3 price.

Evernote is a no-brainer for me. It’s easily among my top 3 most-used apps (along with OmniFocus and Twitter) and is an indispensable capture tool for me. I use it to keep track of where I go (and when I was there) using the geotagging business, to fully photo-document my son’s t-ball games and my daughter’s ballet classes and as a portable copy of my entire digital filing cabinet (plus a pantload of other uses). Anybody who knows me knows that I’m a huge fan of Evernote, so none of this should come as any surprise (disclosure: I work for Evernote).

What is your favorite app?

Choosing a favorite app would be tough, but the two contenders would certainly be OmniFocus and Evernote. OmniFocus is my task manager of choice on both my Macs, my iPad and my iPhone. It’s hard to overstate just how mind-bindingly awesome it is, particularly on the iPad (a point you’ve made on many occasions). It’s got all the oats you could possibly want in a task manager, but let’s you keep it simple if that’s your deal. I won’t belabor this point, but suffice it to say that OmniFocus is what I tap by default when absentmindedly unlocking my iPhone.

My guilty pleasure would definitely be Ego. It’s a simple app that let’s you track your social-ish stats: RSS subscribers, twitter followers, blog page views, etc. I will freely admit that there’s a certain amount of narcissism inherent in apps like this (hence the name), but it does give me a dashboard-style view of how popular I am and, thus, how worthwhile my existence is on this earth. Kidding.

So what is missing from your iPhone?

I’ll be honest — and this is going to sound extremely fanboy-like — there isn’t really an app that I want to exist that doesn’t. I’m already pretty floored by what my iPhone can do and it does just about everything I want. I could do with a little less friction in some cases (I’d pay money for native clipboard history or TextExpander-style functionality), but on the whole I’m very happy with everything my phone does.

How often do you use your iPhone?

I use my iPhone pretty regularly throughout the day. I work at home and, as such, I often need to get away from my desk for a few minutes. If I’m taking a walk, I’m probably listening to a podcast or skimming RSS feeds in Reeder. If I’m in the kitchen making a tasty snack, I’m probably reading Twitter or doing email triage. If I’m at my desk, it will frequently serve dutifully as my Pandora player (so I can avoid having to spin up the molasses-laden CPU hog Flash player on my Mac). After business hours, I use my iPhone a great deal more for taking quick snaps of my family or shooting short video clips. I suck at both of these activities to startling degrees, but the iPhone makes that particular act of sucking very, very easy.

What is your favorite iPhone feature?

I’ve carried golf bags for some UI designers and one axiom of their field that has stuck with me is the idea that interfaces should do the least surprising thing. Both the iPhone and the iPad absolutely nail this: for the most part, they do what you expect when you interact with them. A close second would be that, with both devices, Apple built them to be responsive above just about anything else. I very rarely find myself tapping on a button or swiping the screen without something happening, even if it’s already grinding away on something. In my admittedly limited experience with other smartphones, this simply isn’t the case — at least, not to the same extent.

Anything else you’d like to share?

Personally, I can’t stand the folders. The current iteration of iOS allows 11 screens of un-folder-ed apps. I can’t imagine requiring more space than that. I understand the idea of logically grouping applications, but the novelty wore off very quickly because, at least for me, it just meant I needed to tap the screen a few extra times to launch the app that I wanted. I’ve used the same apps (in the same arrangement) for long enough that I know instinctively where to go and how to launch them. Folders would effectively kneecap my ability to launch apps without looking closely at the Springboard.

My only exception to this whiny folder-hating approach is that I use a single folder to hold all of the stock apps that I rarely or never use and can’t outright delete: Notes, Contacts, Weather, Compass, Voice Memos, Stocks, etc. I also keep the App Store and iTunes apps in this folder to avoid excessively draining my wallet; out of sight, out of mind.

Thanks Brett.

iGlue

Over the past decade, Apple has turned the technology world on its head with the iPod, iPhone, and iPad. All of these were transformative device to change the landscape of consumer electronics. It has also fueled legendary growth for the company with significant profits every year arriving on products that did not exist the year before.

At some level, however, none of these products were particularly surprising. Rumors of the iPhone swirled for years before it arrived. Likewise, all of us nerds were pining away for the iPad long before Apple bestowed it upon us.

So now that we have all of these devices the question arises, what is next? If Apple wants to continue to grow, it needs to continue to innovate and amaze us. So what is the next innovative product? There are several contenders:

The Apple Television

One popular source of speculation is the idea that Apple will build its own television set. I can see it in my mind’s eye: a monolithic slab of Ivesian industrial design with just the right amount of glass and aluminum and a remote controller with no buttons but a pulsing Apple icon. The trouble is, I’m not sure even I, a veteran of countless Apple launch day lines, would buy one. People don’t buy new TVs like they do iPods or iPhones. Moreover, the TV business is cutthroat and low margin, which is not Apple’s cup of tea. In order to make an Apple television work Apple would have to transform the experience and I’m not sure they can. This would rely on cooperation of networks and content providers, which is outside Apple’s control. In short, the Apple television sounds like small profits and big headaches. Perhaps Apple will prove me wrong but I don’t see that as the next big thing.

The iSomethingElse

Apple has experimented in the past with making printers, external hard drives, cameras, and other consumer electronics. The rub is, the company has done none of that since Steve came back. These again are small margin industries where Apple can’t change the world the same way it did with the iPhone and iPad.

I believe the Apple engineers are in iterate mode improving upon existing technologies for the iPhone and iPad (and to a lesser extent the Mac) so they can remain ahead of the competition. I do not believe they have cooked up some new device that none of us thought of to change the world, again. Put simply, the next Big Thing isn’t a thing at all. Instead, I think it is glue to pull the existing Apple products line together even tighter. It is time for iGlue.

iGlue

This is no revalation. The Internet is buzzing with talks of the mystereous Apple server farm and iCloud. Apple has built an amazing product family. Now it’s time to work on family relations. Apple needs to turn itself into the digital hub of our lives. We should be able to buy an Apple device, type in account credentials, and have immediate access to all of our digital bits. By this I don’t mean just songs we’ve bought from iTunes. I think it should be documents, pictures, media, and everything else in our home folders. The whole enchilada.

I have talked to Apple employees and they get this. There is no mystery that the world is turning cloud-based and those who ignore this will get left behind. I think this is a challenge for Apple. Clearly, synchronizing and cloud-based solutions are Google’s game, not Apple’s. Can Apple succeed outside of its comfort zone? I think so.

The very public failure that was the MobileMe launch has not faded from anyone’s memory, especially Apple’s. Common wisdom is that Apple can’t “do” the Internet. I think common wisdom is wrong. While Apple has tinkered with the Internet so far, I don’t think Apple has “done” the Internet yet. That is about to change.

With billions sitting in the bank, Apple can build the massive data centers and hire the required talent to make them humm. The only variable left is heart, and I suspect we’ll know just how much Apple’s heart is in the iCloud in the next few months.

So what if Apple brought its considerable resources to bear on the Internet problem? What would we see? I think it is a service that is not as aggressive as Google with new features but really nails those everyday features consumers need with a gorgeous interface and panache. Apple never overreaches with the first steps in a new venture. The MobileMe fiasco will make them even more conservative with a big cloud syncing rollout. So will I get my whole enchilada on day one? Probably not. Nevertheless, I believe the next big thing will be iGlue and when the dust settles, people will stop saying that Apple cannot “do” the Internet.

MacSparky.com is sponsored by Bee Docs Timeline 3D. Make a timeline presentation with your Mac.