When we talk about the so-called "patent wars," we are usually talking about legal swipes by major companies like Apple, Microsoft, Google, and others over technologies involved in their phones, tablets, and various services. It's not very often we talk about the little guys. They're not usually very involved in the circus that has become the US patent system.
That changed last year when patent holding firm Lodsys—apparently owned by another patent holding firm, Intellectual Ventures—began targeting independent developers for patent violations. But the developers in question—from iOS to Android and beyond—didn't think they were violating anyone's patents. At least for iOS developers, they were making use of APIs provided by Apple that Apple had licensed from Intellectual Ventures. And although Apple has recently been green-lighted to intervene in Lodsys' lawsuit targeting some third-party developers, there are many, many others left without the help of a multinational corporation on their side.
As a result, the Appsterdam Legal Defense team was started in August of 2011 by a group of iOS developers in response to growing patent threats by non-practicing entities (NPEs). Their first move was to bring on board intellectual property attorney Michael McCoy, but the group went into 2012 still trying to fight Lodsys and other NPEs without the kind of legal budget and know-how that companies like Apple can take for granted.
Now, the Appsterdam team is stepping up its game by giving independent developers access to a database of patents and prior art that they'll be able to use to determine what could be asserted against them—before they launch their apps. The database is thanks to a partnership with Article One, a "patent research community" that works within 188 countries to help the little guys figure out whether they want to proceed with their plans, and how.
"Our original goal was that there should be an organization that app makers can go to for help, but in the first 3-4 weeks, I was contacted by close to a thousand developers from around the world who had received legal notices and wanted to get involved," McCoy told Ars. "It became apparent that there was this need for educating developers on the patent system."
Thus began the partnership with Article One. Not only does the database allow Appsterdam developers to look up prior art, it also allows them to contribute back to the database so that other companies can look up their prior art.
"The biggest question from folks who have been contacted by NPEs is, 'Why should I even release an app in the United States due to the patent mess? Is it really worth it to me?'" McCoy said. "Instead of reacting to the patent problem, it's about empowering the app maker community to have the tools to look at it and choose what might happen beforehand."
How will that happen? "Someone could be sitting with a notice letter or with a complaint and has to react," Article One CEO Cheryl Milone told Ars. She described a scenario where a developer has received a patent violation notice for his app, but he might have his own evidence showing that the patent shouldn't have been granted or should be considered invalid. That person "might have a case and can make a decision as to what their next action is," she said. "Or, the collection of information might leave an open question if the patent being asserted by an NPE is valid or invalid. If it's valid, Appsterdam gives them a simple process to determine whether they should remove that from their app."
The team is palpably excited to start giving its members easy access to existing patent research, and Article One seems pretty excited to have them. After all, Appsterdam's members can use the system to look up what they are potentially liable for, but they can also add their own documents, records, and prior art to the database if they think they have a strong enough case to prove.
"In this sense, the client and the researcher community have really come together," Milone told Ars. "These app makers are both clients and great sources of information. If members of the public can correct the patent system and be paid for it [by creating apps], that would be great."
"It's kind of like open sourcing prior art," McCoy added. "Programmers in general are amazing at contributing to the work of others. If they have prior art, they can start contributing those things and have others build on them."
Challenges ahead
But Appsterdam has greater aspirations than just helping developers learn how to avoid litigation. "We don't just want to focus on developer education and legal defense," McCoy said. "We want to be a one-stop legal shop for the app maker community."
Indeed, such a setup sounds appealing to the one or two-person company just looking to release a cool app but worried about being drained of funds by NPEs. But there's a long way to go before the Appsterdam team actually becomes a one-stop legal shop for app makers—namely, some sort of plan for setting up access to the Article One database and the technical details of paying for it. Appsterdam is a nonprofit organization that doesn't currently charge membership fees to those who choose to be part of the group, but that could change if they want to truly become a legal reference for the app maker community.
"Because we're a nonprofit, we don't have a tremendous amount of funding from elsewhere. We're toying around with how our community will have access to it. It's part of our core problem," McCoy told Ars. Although Appsterdam and Article One are announcing their partnership today, McCoy was unable to give me a date or time frame for when they expect to launch their tools on the developer side. "We need resources. We need to be able to plug into the system, pay for it, and effectively administrate it."
Those elements have yet to be determined, but the goal is to get the system up and running as soon as possible. "Article One has a massive database, and it would cost tens of thousands of dollars if they were putting it together for an enterprise," McCoy pointed out. McCoy also said the group is considering options like membership fees or some other way for developers to chip in on the costs. "There would be a sign-up process," McCoy said. "You have to be part of Appsterdam to be part of the database."
Whatever the group ends up doing, it certainly seems like joining the other app makers that comprise Appsterdam is at least worth considering if you're a small business trying to launch an app. Going it alone with a team of lawyers is always an option as well, but the time and money involved may prove to be more than what some developers bargained for.
"Aggressive NPEs are just moving down the food chain looking for settlements and payments, and aggregating those payments over time," Milone said. "This is just a tremendous effort to bring a whole bunch of grassroots solutions to small business owners. We can't forget individual entrepreneurs in our economy. This is a solution, and we will continue to support Appsterdam in any way we can."
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