Apple's silence raises big questions about patent protection on iOS and Mac OS X

Apple adds insult to injury: Requires patented technology for in-app purchases, no indemnification

The Electronic Frontier Foundation (EFF) is calling on Apple to indemnify its developers from Lodsys — a patent troll that's alleging patent infringement on the in-app purchasing used by iOS apps. You know, the technology developed by Apple and forced on many of its developers.

The letters Lodsys has been sending out came to light on May 13th, and apparently developers have been asking Apple for help to no avail. Now a week later, the EFF is calling Apple out. Here's what Julie Samuels of the EFF has to say about it:

Apple provides this functionality to its developers and requires that they use it. Apple itself is protected from liability – Apple took a license from Lodsys' predecessor to use this very patent (which was likely part of a larger blanket license). And the apparently one-sided Apple-developer agreement does not require that Apple indemnify developers from suits based on technology that Apple provides.

This is a problem that lawyers call a misallocation of burden. The law generally works to ensure that the party in the best position to address an issue bears the responsibility of handling that issue. In the copyright context, for example, the default assumption is that the copyright owners are best positioned to identify potential infringement. This is because, among other reasons, copyright owners know what content they own and which of their works have been licensed. Here, absent protection from Apple, developers hoping to avoid a legal dispute must investigate each of the technologies that Apple provides to make sure none of them is patent-infringing. For many small developers, this requirement, combined with a 30 percent fee to Apple, is an unacceptable cost.

Apple forcing developers to implement the in-app purchasing is bad enough. But the framework is provided by Apple to its developers — it's the one that should be taking the hit, if any, when the patent hits the fan. If Apple doesn't step up, it calls into question the safety of any developer tools that Apple provides.

Given the minefield that is the software patent landscape these days, it's not hard to imagine how many patents cover technologies that Apple provides in its developer tools. If Lodsys is successful in going after independent developers for this, without Apple stepping up, it's going to be a field day for patent trolls going after developers who provide software for iOS and Mac OS X.

Apple is a much harder target than an indie developer with no legal department. It has a sizable patent portfolio to help protect it from other companies, and can afford to go toe-to-toe with trolls like Lodsys. It should be a no-brainer for Steve and company to stand up for their developers and remove any and all threats to developing with the tools that Apple provides. Let's hope that this is a temporary calm before Apple's lawyers storm into action — the alernative is just too sad to contemplate.

Ball's in your court, Apple.

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