But for Apple’s own proposed participation as an intervenor it makes sense to focus on the theory of exhaustion (meaning that Lodsys can’t get paid twice for a licensed use of the patents in question). In connection with that particular defense theory, Apple has by far the strongest basis for asking to be admitted as an intervenor.
Mueller believes Apple will get the chance to intervene on behalf of its developers due to previousÂ precedents. However, he doesn’t count out the possibility Lodsys’ infringement claim could beat the exhaustion argument.
Here’s a snippet from the filed Apple motion (you can read the restÂ here):
Apple Inc. (â€œAppleâ€) hereby respectfully moves to intervene as a defendant and counterclaim plaintiff in the above-captioned action brought by plaintiff Lodsys, LLC(â€œLodsysâ€) against seven software application developers (collectively, â€œDevelopersâ€), for allegedly infringing U.S. Patent Nos. 7,222,078 (the â€œâ€™078 patentâ€) and 7,620,565 (the â€œâ€™565patentâ€ and, collectively, the â€œpatents in suitâ€). Apple seeks to intervene because it is expressly licensed to provide to the Developers products and services that embody the patents in suit, free from claims of infringement of those patents.
It’s a good sign that Apple is stepping up to protect its developers from patent trolls and not leave them behind.Â Apple is confronting Lodsys head on, and this legal battle appears far from over.