Thursday, October 11, 2012

And the winner is . . .

This is (hopefully) the final installment in my series of posts about the lawsuit that has threatened the iPad app that my daughter uses to communicate. 
A brief recap:  In March, I wrote about a lawsuit that posed a threat to my daughter’s voice. Maya, who is four years old and unable to speak, uses an app called Speak for Yourself (SfY) to communicate, and the creators of SfY were being sued for patent infringement by Prentke Romich Company (PRC) and Semantic Compaction Systems (Semantic), two much larger companies that make designated communication devices (not iPad apps).  Maya’s voice, and the voices of all of the other users of Speak for Yourself, was being threatened in a very real, serious way. In June, that threat was heightened when PRC/Semantic requested that Apple remove the Speak for Yourself app from the iTunes store, and Apple complied with that request (despite the fact that PRC/Semantic had never asked the court for an injunction to halt the sales of the app—a move that would have allowed for due process and the decision of an impartial judge). The Speak for Yourself team diversified by creating an Android version of the app, and PRC/Semantic responded by issuing a similar take-down notice to the Google Play store (which Google Play also complied with). 
In the meantime, 3 users of the Speak for Yourself app (including Maya) moved to intervene in the court case, ready to fight for their right to an app that had become their voices.  As we waited to hear the court’s response to our motion to intervene, the parties in the case entered court-ordered mediation . . . a standard step in many patent disputes, and one that does not typically yield results. 
But in this case, it did.
Yesterday a joint statement was released, which stated that the parties involved had reached a settlement and that the case was dismissed.  Here is that joint statement:
U.S. Patent Nos. 5,748,177 and 5,920,303 and certain Semantic copyrights relating to the Minspeak®/Unity® language system for augmentative and alternative communication. As part of the settlement, Semantic and PRC have agreed to withdraw their infringement or take down notices. Under the license, Semantic and PRC will not issue any new infringement or take-down notices to providers associated with the SFY AAC software application. All other terms of the settlement an

Semantic Compaction Systems, Inc. (“Semantic”), Prentke Romich Company, Inc. (“PRC”) and Speak for Yourself, LLC (“SFY”) have announced the settlement of the lawsuit and all claims related to the SFY augmentative and alternative communication (“AAC”) software application. In connection with the settlement, Semantic has agreed to grant a non-exclusive license as to two of Semantic’s patents, i.e., U.S. Patent Nos. 5,748,177 and 5,920,303 and certain Semantic copyrights relating to the Minspeak®/Unity® language system for augmentative and alternative communication. As part of the settlement, Semantic and PRC have agreed to withdraw their infringement or take down notices. Under the license, Semantic and PRC will not issue any new infringement or take-down notices to providers associated with the SFY AAC software application. All other terms of the settlement and license are confidential.
In translation, PRC/Semantic have agreed to license two patents and some copyrights to Speak for Yourself.  Speak for Yourself has agreed to pay to be a license-holder. PRC/Semantic have agreed to never again issue any take-down requests to stores that are hosting the SfY app, and they must contact the recipients of their previous take-down requests and ask that the app be reinstated.  The Speak for Yourself app will return to both the iTunes store and the Google Play store, so there will be Apple and Android versions available. 

So . . .  who “won” the case?

Well, not PRC/Semantic.  Their lawsuit was assertive from the start, and they seemed to be bent on the complete removal of Speak for Yourself from the market (as evident from their diligent, repeated take-down requests).  In June PRC issued a statement which, in part, cited the fact that they had approached  SfY with several “business solutions” before filing the lawsuit against them.  SfY responded with a statement of their own, pointing out that every single one of the business solutions required shutting the app down completely.  Now, months later, PRC has had to settle for a business solution that seems to involve licensing fees, but allows this app to return to multiple markets.  Interestingly, PRC has now come out with their own communication app (months after the start of this lawsuit), and the Speak for Yourself app will likely be one of its direct competitors.  So, while PRC will get some sort of licensing cut, I would imagine that this doesn’t feel like a victory to them.

Does that mean that Speak for Yourself is the winner?

Well, I don’t think so.  The creators of Speak for Yourself have repeatedly asserted that their app does not infringe on the intellectual property of PRC/Semantic, as noted in this statement from 6/14:  We want to assure our customers and supporters that we will continue our vigorous challenge to the validity of the PRC/ Semantic patents and defense against the claim that our App infringes on any valid patent – it does not.

Now, as part of their settlement, they’ve agreed to a licensing situation.  This decision expedited the return of their app to the marketplace by several months (if not longer) and closed out a court case that was likely stressful and expensive . . . but it also seems to mean that they have agreed to pay a fee for something that they believe doesn’t infringe in the first place. 

While it appears possible that SfY was open to a licensing agreement from the start (their only negative statement about PRC’s proposed “business solutions” being that they involved the shut down of the app . . . not that a monetary arrangement was somehow insulting or ridiculous in nature), their acceptance of one late in the game could leave  PRC devotees clamoring “See?  They must have been infringing if they are agreeing to pay something!”  or “PRC must have had a really strong case against SfY if they are willing to just bow down and pay fees!  Clearly, PRC comes out on top.”

And the SfY supporters could argue back “Wow, PRC must have known that they weren’t going to win in the end if they were willing to suddenly offer a licensing deal and let their competitor remain on the market rather than continuing with litigation.  They probably thought SfY would cave right in the beginning, and had no idea that this would turn into a small media storm, with waves of negative press.  Bottom line—the app is back, Speak for Yourself has won.”

But really, what’s the point in debating which business came out with the upper hand?  They both had to make concessions that likely weren’t what they had hoped for, and now the court battle is done, finally.  It doesn’t seem to me that either company was “the winner.”

But there definitely was a group that emerged victorious----AAC users. 

And this victory isn’t just for people who are using the Speak for Yourself app, either.

Certainly, the users of Speak for Yourself can now rest easy that the app won’t disappear from their iPads or Android tablets, and that updates to iOS won’t be incompatible with the app, rendering their voices useless.  Nonverbal children (and adults) who had been waiting to download the app will be able to purchase it, opening new doors to communication.
Users of Prentke Romich’s line of communication devices have won as well.  In the midst of this court case PRC released their own full AAC app for the iPad, a move that PRC fans have been requesting for years.  While it’s possible that it’s been PRC’s plan all along to release a full communication  app, it seems a reasonable assumption that the Speak for Yourself app, and resulting litigation, may have forced their hand a bit, or at least accelerated their timeline.
Finally, this case has set a precedent, one that says that AAC apps deserve some degree of respect and protection, and that the good ones are worth fighting  for.  When Prentke Romich (a huge name in the AAC field)  sued Speak for Yourself (a small start-up company with only one product on the market) it seemed likely that the small company would quietly die off.  I don’t think anyone expected the 2-woman team at Speak for Yourself to stand their ground and prepare for a long court battle.  I don’t think anyone expected the story to be picked up by TIME, the Huffington Post, and other news outlets (both nationally and internationally).  I don’t think anyone expected an online petition about this case would collect over 5,000 signatures.  I don’t think anyone expected users of the app to join together and enter the court proceedings, arguing that this is not just a product for sale, but a voice that we have a right to protect.
And I don’t think anyone expected these opposing companies to sit down for a month and a half of mediation sessions, each side making concessions and settling in a way that wasn’t ideal for anyone involved, except for the people who had the most to lose---the users of the Speak for Yourself app, who rely on it as their voice.




Three of Cups said...

Bottom line... Maya and many many others can continue to communicate! That is clearly a victory!

Usethebrains Godgiveyou said...

This is wonderful. Creators of AAC apps have taken advantage of the situation with exorbitant prices for years, and this little David SFY company hit them right between the eyes. I hope the PRC app is competitively priced. AAC should not be a luxury for the rich or well connected. God Bless those 2 women! It's a victory for more than just them and the kids who used SFY. It's a victory against the opportunism of the Goliaths.

Thank you for being such a major part of it. You helped a lot with your lion heart!

Katherine said...

Fantastic! You should be so proud of yourself for helping stand up and speak for those who cannot speak for themselves. Now with this app (and the ones that I'm sure will follow) so many of those whom you stood up for will be able to speak for themselves!!!!!

laurelsmom said...

To the victor go the the spoils! In this case, definately the AAC users. More choice in the marketplace, more reasonably priced products (realtively speaking), and using the latest technology.

susan said...


Anonymous said...

I am happy that this is resolved and your daughter will continue to have access to the app for her voice. However, usethebrains godgiveyou, you have it all wrong! AAC is not a luxury for the rich or well connected!!!! Medicaid has been paying for communication devices for 20 years! Private insurance pays for them, schools purchase them! Ipads and apps are not cheap, but they have succeeded in bringing AAC into the mainstream public and made it much more acceptable. To say that PRC is a Goliath is also so wrong!! Without PRC, AAC would not be where it is today. PRC is a small, employee owned company that has spent years in developing AAC and teaching thousands of families, clinicians, teachers, and users how to communicate. Without PRC the developers of this app would not have known where to start! If companies like PRC and DynaVox go under, the AAC community will suffer such a tremendous loss that it may never recover from. and no, I do not work for PRC. There is a place for dedicated devices and Ipads and apps.

aurizon said...

I just saw this youtube video from the 70's that shows chimpanzees using symbols for communication. These sumbols are movable and changeable, and this seems to invalidate those patents and the method could be a way of teaching students who are deaf/mute via sumbols as well as speaking and hearing ones.