Why I’m not paying the Troll Toll

Pay the Troll TollMy company TMSOFT was recently sued by Lodsys in the eastern district of Texas.  I initially thought I was being sued for using a hyperlink in my White Noise application (see below).  I know now I’m being sued because the CEO of Lodsys didn’t like what I publicly said about their company. That’s right. I’m being sued because I called Lodsys a “patent troll” on my podcast, Tech 411.

This all started in May, 2011 when my co-host and I re-launched Tech 411, formerly a radio show in Washington DC, as a podcast on iTunes.  Our first couple shows discussed how Lodsys was going after app developers.   I commented that Lodsys was “patent trolling” with “evil letters” that were “complete b.s.”  Around this time Apple had featured our show and it quickly became the #1 tech news show on iTunes.

Shortly after these shows were published, I received one of the infamous Lodsys letters which said I was in violation of their patents.   Their letter included a screenshot of White Noise showing a web page used to share news and cross promote other apps.  They highlighted a hyperlink that would open a URL to another one of my apps on the App Store.  If opening a URL to a web page or app store listing is in violation of their patents then everyone who publishes an app would be in violation.

Lodsys claiming a hyperlink violates their patent

Lodsys claims this part of my White Noise app is a “Two-way interaction configured to elicit user perception information through an upgrade process” and is violating their patents.  I call it a HTML hyperlink.

I invited Patrick Igoe, a registered patent attorney, onto Tech 411 Show #5 to discuss the matter.  Patrick had already done analysis of Lodsys’ patents at his applepatent.com blog and he couldn’t find a single reason why app developers would be in violation.  That was the same conclusion that Apple’s own legal counsel came to as well.

Over the course of a couple years, I received a few voicemails from either Lodsys or the law firm that was representing them.  They wondered if I had any questions regarding taking a license agreement.  The only question I ever came up with was wondering how they slept at night.  I’m sure the White Noise I created for the purpose of better sleep wouldn’t help them.  I continued to hope that Lodsys would think my company was too small to pursue.

That all changed when Lodsys sued another batch of App Store developers which included my company TMSOFT.  They even filed suit against the Walt Disney Company.  I guess I could be flattered that my little company is being sued along with a 100 billion dollar company, but it isn’t possible for smaller companies like mine to afford a proper patent litigation defense.  I’m sure Walt Disney will be fine, but smaller companies like mine are usually forced to settle.  And Lodsys really doesn’t want to go to court either; they just want companies to pay a licensing fee and not put up a fight.

I’ve been fortunate to have Dan Ravicher from PUBPAT (pubpat.org) represent my company pro bono in this matter.   Pubpat is a not-for-profit organization that has the mission to protect freedom in the patent system.  He’s a champion of the little guy who has offered to help app developers and small companies that have been targeted by Lodsys.  He is currently representing local farmers against Monsanto, a company that is very aggressive with its patents on genetically modified seeds.  He has presented at Google on protecting freedom in the patent system in which he describes some serious issues with our patent system.

Dan contacted the lawyer for Lodsys, who actually admitted to him that this wasn’t about money.  It was about the things I said on my tech podcast and blog.  During that time, the CEO of Lodsys, Mark Small, was getting a lot of negative media coverage and even wrote on his blog that he received several death threats.   Mark obviously didn’t like the comments I made about his company and retaliated by sending a patent infringement letter.

Lodsys is seeking a percentage of revenue from the time they sent me the letter to the time their patent expired.  Usually they request  around 1% of your in-app-purchases. My company made about $500 with in-app-purchase during this time period and 1% of that is $5.  What?  I’m getting sued for $5?  Given it cost Lodsys $350 to file the lawsuit I assumed they would ask for more than that.  And they did.

Lodsys offered to settle with my company for $3,500.  If I pay them off, what is stopping the next troll from knocking on my door?  Nothing.  And I’ve heard that if you pay a troll to go away it can lead to more trolls showing up.  It’s like your company gets added to a spam list.  That’s not a list I want to be on.  I’d rather be able to talk about this issue and hope that at some point in the future our patent and legal system will change to address this serious problem.  In the end, it’s dragging down our economy because small innovative companies have to spend time and money defending themselves against bogus lawsuits instead of hiring new employees.

My apps are not in violation of Lodsys’ patents.   My lawyer believes this.  Apple has stated app developers are not in violation.  The EFF says it’s time to beat this troll.  If I were to take the Lodsys offer then I’d have to sign terms where I couldn’t talk about it.  That’s a real problem because there are lots of people that want to share their patent troll story but they are no longer allowed.  I don’t want to be censored.  I want to openly discuss issues that are facing my industry.  I believe that this case will be dismissed (PUBPAT has filed the motion to dismiss below on TMSOFT’s behalf) and I hope this will open up a path for others to follow.  Will you help me in this fight?

One thing you can do to help is spread the word to raise awareness.  Share this article on Twitter and Facebook.  Another thing you can do is donate to PUBPAT’s Defend Apps from Patents Campaign by clicking this button:

All funds donated to PUBPAT for its DEFEND APPS FROM PATENTS Campaign will be used to defend small and nonprofit apps from patent threats, including, for example, its current defense of TMSOFT from Lodsys.

Additional Information:

  • TMSOFT Motion to Dismiss under the Texas Citizens Participation Act and For Lack of Personal Jurisdiction – Filed 7/1/2013 – Download
  • Innovators need patent reform: An open letter to Congress – Sign
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35 Responses to Why I’m not paying the Troll Toll

  1. Yermo says:

    Todd,

    It’s been a while. Thanks for telling your story. This patent mess, as anyone who knows me, has been on my mind for close to two decades. If I can help in any way, you know how to reach me. Donation has been sent.

    – Yermo

    P.S. For those who are non-technical, an article I wrote on the subject, which may help to explain why it’s so bad: http://appupdate.com/fv-b-1-5/why-software-patents-are-a-terrible-idea–or–why-you-shouldn-t-be-allowed-to-patent-a-better-virtual-mouse-trap-.html

  2. Adam Calhoun says:

    Go get them, good for you for taking a stand and making it public. Bullies are not acceptable on the playground or in the cyber world. I look forward to the updates.

  3. Max says:

    An excellent NPR investigation that I found very informative as a layman to patent trolling.

    http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two

  4. Christy Jourdan says:

    Today’s Adam Carolla podcast was all about the patent trolls… I applaud your decision not to give into their strong-arm mafia-like threats.

  5. Ross C says:

    Just donated 25USD. Best of luck!

  6. Jon says:

    Forgive my legal ignorance but can everyone who has been sued by patent trolls file a counter-suit against the troll for slander or something like that? I mean if you stand up and call someone a thief and have no proof, doesn’t that put you as the wrong doer? I feel like the only way this will stop lawsuits, and the unprecedented amount of frivolous cases, is when people start actually getting in trouble for filing them.

    • Jonathan says:

      I think you’re thinking of malicious prosecution. The problem is that if you want to bring a malicious prosecution suit against the original plaintiff, you’ve got to first win the trial (or have it dismissed), then prove (among other things) that they brought the original suit with malice. So, you can’t settle the case and proving malice sounds pretty hard to me.

      Wikipedia article on Malicious Prosecution

  7. Karen Kalweit says:

    Todd, your White Noise app has been an important source of help to me. Thanks! I don’t want to see these people push you or anyone else around.

  8. Jason says:

    I applaud you. I also listened to the Carola podcast re patent trills and just donated via PayPal. Please keep the fight alive and public!

  9. A.S. says:

    Worth fighting for – donation sent!

  10. Ron Reiter says:

    This is ridiculous, how come those companies still exist?

    • Jeff Price says:

      Because software patents exist. Software isn’t really patentable based on the language used since the establishment of the USPTO to define what can be patented. Software used to be protected by copyright.

      But the USPTO runs on user fees and a few years back they realized they could make a lot of money by collecting the fees to grant software patents. So they figured a way to do it. I think they used the angle of basing them off of process patents, which I don’t think most other countries even have, right???

      Anyway, software patents = EVIL. They must be ended.

      /R
      -jeff

  11. Martijn says:

    > Dan contacted the lawyer for Lodsys, who actually admitted to him that this wasn’t about money. It was about the things I said on my tech podcast and blog.

    You might want to ask your lawyer to check whether this can be used to start an Anti-SLAPP lawsuit against Lodsys: http://www.dmlp.org/legal-guide/anti-slapp-law-texas

  12. Rick Turner says:

    Patent Trolling is getting out of hand, and the government needs to step in. Thank you for standing up and making a stink, we need to create an issue here, or else the bullys will keep on keeping on. It should be illegal to buy a patent for the express purpose of suing others.

    Thanks Todd

  13. Dave says:

    At least Texas has an anti-SLAPP law that should make this easier to get dismissed.

    http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

  14. Please consider creating a Bitcoin address for receiving donations. I would be happy to help you with this.

    Many of us who oppose patent trolls also opposed Paypal for closely related oppressive reasons.

  15. Daniel Riti says:

    Just donated, keep up the fight!

  16. Sebastian says:

    Blood-boiling injustice.

    Lodsys is clearly a den of thievery. The whole lot deserves to be thrown in prison – what you’re describing is a clear case of racketeering.

    Best of wishes.

  17. Ian says:

    Have you tested the waters to see if there’s any media interest in this? The more publicity the better! Good luck.

  18. Alan Zeino says:

    Article missing a very important clip from Always Sunny, me thinks

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  25. Matt says:

    IANAL, but wouldn’t improper joinder be another avenue to also claim with regards to this case? would be hard to get that to stick in Texas, but worth mentioning.

  26. Matt Heaton says:

    Good luck and go get those scum.

    I’m expecting to have to deal with something very similar in the near future. There’s a patent troll, Treehouse Avatar Technologies, who’s started mass mailing litigation threats against small game MMO game developers.

    I received one last week, decided to go public with it and have since heard from several other small game developers being threatened. I figured I’d try to get the word out to other developers in hopes they wouldn’t just get intimidated and roll over to the threats. Of course like your situation they may just decide to target me out of spite, despite the lack of potential economic benefit to them. More can be found here:

    http://gamepolitics.com/2013/07/08/treehouse-targets-indie-studio-threat-patent-infringement-lawsuit
    http://www.reddit.com/r/gamedev/comments/1hvlnb/patent_troll_threatens_small_game_developers/

    • todd says:

      Thanks for sharing and I’m sorry to hear there is another troll out there making threats to indie-developers. I’m sending you my contact information.

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