My reading of the documents suggests you missed the point entirely here. Apple is not claiming exhaustion as a defense for infringement for their developers. They are claiming exhaustion as a reason for their intervention under Fed R. Civ. P Rule 24(a). As such they do not have use it as a defense. What is important are the terms of the licenses which, again, no one here has read. You also ignored that Apple cites Fed. R. Civ. P. Rule 24(b) as another reason for the court to grant them leave to intervene.
Your reading of the documents is completely off base. Apple's motion for an intervention comes with a proposed answer to Lodsys's complaint, which raises only one defense: exhaustion. You could have read that on my blog. The other points you make are equally off-base.
Didn't read who was posting. The name explains it.
That's a very sophisticated, analytical approach then
If things were as easy as you (gnasher719) say, it would certainly be just a matter of contract interpretation. But it's not. You wrote your post prior to reading my explanation of why it's far from easy to argue with the existing license agreement. I linked to that explanation before.
Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents. It's highly unlikely that Intellectual Ventures' standard patent licensing agreement says anything about 'app developers'. Chances are 99.99% that the term 'app developers' doesn't appear in that license agreement at all.
The analysis of whether or not Apple's license constitutes 'exhaustion' of any given Lodsys patent is no less complicated than analyzing Lodsys's infringement assertions. As I explained on my blog, 'exhaustion' is a concept that requires an in-depth technical analysis of the technology that is licensed (in this case, Apple's technology) and the one that is accused of infringement (the apps) and, very importantly, how those two layers interact. This means that the court has to go through a detailed technical analysis based on so-called infringement claim charts, which typically require the construction (interpretation) of the most relevant terms used in the language of those patents.
What I just said is also supported in full by Apple's own arguments to the court for why its intervention should be admitted (Apple stresses that only Apple itself can explain how its technology works) and a letter sent to the court by Atari, Electronic Arts, Quickoffice and Square-Enix in support of Apple's proposed intervention. Those four companies also stress the importance of access to Apple's information not only regarding the license agreement but also the technology at issue.
Exhaustion defenses are very difficult to analyze. Do some research on the case law and you'll see that those mattesr are by no means less difficult to analyze than infringement assertions.
I welcome the fact that Google finally does at least something (after months of not answering related questions from affected Android app developers), and Google did a very good job so far on patent reexaminations in its dispute with Oracle.
However, these reexamination requests are of very limited use on their own . They don't change the situation of developers who get letters from Lodsys or are actually sued by Lodsys and have to decide whether to pay up or fight. Even the combination of Apple's motion for a narrowly-focused intervention (Apple just raises contractual issues as opposed to defending app developers against Lodsys's infringement assertions per se; Apple's 'exhaustion' theory could work but it's far from certain to hold water) and Google's reexamination requests doesn't really strengthen little 'indie' app developers at this stage. Also, the Wired article pointed out that the U.S. District Court for the Eastern District of Texas grants stays pending reexaminations only in 20% of all cases. Most of the time, those federal lawsuits continue unabatedly, even though the patent may subsequently be invalidated.
Short of blanket coverage from Apple and Google, what those two platform companies do against Lodsys is insufficient. It would be great if they could give their developers some real guidance -- many right now don't even dare to implement in-app purchasing or links to an app store (Lodsys also brings assertions against links, not just in-app purchasing) because they don't want to take risks. Others have removed their apps from the U.S. market because of Lodsys (which goes after international developers, too, but can only sue them if those do business in the U.S.). Apple and Google fail to create a basis on which developers would be able to simply ignore Lodsys and go about their business.
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