For Pete's sake, stop the patent madness now! The NTP vs. RIM case MUST wait.

For Pete's sake, stop the patent madness now! The NTP vs. RIM case MUST wait.

Summary: I'm in the process of writing up my review of an interview with Research in Motion (RIM) president and co-CEO Mike Lazaridis.  It appears as though RIM, maker of the infamous BlackBerry wireless mobile messaging devices, is near the end of its legal rope in a patent infringement case that was filed against it by NTP.

TOPICS: BlackBerry

I'm in the process of writing up my review of an interview with Research in Motion (RIM) president and co-CEO Mike Lazaridis.  It appears as though RIM, maker of the infamous BlackBerry wireless mobile messaging devices, is near the end of its legal rope in a patent infringement case that was filed against it by NTP.  Lazaridis is prevented from discussing matters relating to the case with the press.  But, in preparation for the interview, I decided to look further into the legal situation in the event that I could at least get him to address the question of what the company's contingency plans were (to keep customers up and running) should it be forced to shut down its mobile messaging network.  That possibility is a real one and Reuters has already reported that the company has readied a workaround.  But what that workaround is, Lazaridis wouldn't say in my call with him.

Today, NTP and RIM were sent to work things out using a court appointed mediator -- a move that could signal U.S. District Judge James Spencer's disposition to rule in favor of NTP.  But, based on what I can gather, there's a serious problem with the due process that's being applied in this case.   As it turns out, the US Patent and Trademark Office (the USPTO) issued a preliminary finding last week that -- in combination with previous rulings -- could mean the invalidation of all of the patents on which NTP's infringement suit is based.  Let me repeat that: based on the USPTO's preliminary findings, NTP could have no case.  Notta. Zilch. Nothing.  Based on the existence of what is called "prior art," NTP's claims could be baseless.  Apparently, based on the USPTO's legendary reputation for moving like molasses and the fact that the USPTO's finding is only preliminary (it's still possible for the final determination to swing the other way in favor of NTP), the Judge doesn't want to wait and is insisting on closure now.  So, now, RIM is basically being forced to license a patent from a company that may not have that patent. 

Either something's wrong with this picture, or I'm missing something.  If I am (and I fully admit that I could be.. I've come into this pretty late), please say so using our comments section below.  Otherwise, if the NTP vs. RIM case continues to its conclusion without waiting for the USPTO to render its final decision, this will not only be one of the worst miscarriages of patent-related justice I have seen, it will be emblematic of the so many things that are wrong with the existing patent system.  If the USPTO can't state, then the Judge must wait.  Write your Congressperson.  Write a blog.  Do something.  But don't stand idly by while this non-sensical charade continues.

Update: In search of anything that suggests I'm missing some of the facts, I've linked up some news about the USPTO's most recent and preliminary findings (replete with editorialization).  Clearly, judging by some of these headlines, other journalists saw the USPTO ruling as good news for RIM.  But so far, in a defiance of common sense, it is not:

Topic: BlackBerry

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  • David, have you ever held a patent and had it violated?

    My bet is no...
    • No, but my copyrights are violated all the time.

      Not sure what your comment refers to. Upholding an infringement judgement against RIM would be like wrongly incarcerating an innocent person for a crime he or she didn't commit. What does your comment have to do with the issue at hand? Regarding my copyrights, search around the Web and you'll find word for word complete reproductions of my work on other sites. Copyrights and patents are not the same thing, but they're both intellectual property. Whether my work should be published under a Creative Commons license is a different question. Right now, it's copyrighted, all rights reserved. So, my IP (actually, CNET's IP, but I'm a shareholder) is being stolen.

      • This proves that timing is everything.

        RIM is playing the waiting game to see what USPTO is going to decide. NTP has the right to challenge the Patent Office's finding. This could take years. No court will wait that long due to a speedy trial doctrine. Even if RIM has a technical workaround, they will still owe for past damages if NTP prevails. RIM has already lost on past judgements. Only the last patent of 8 on RIM's portfolio has been tossed by the USPTO of the 5 patents that are being infringed. It might not have been one of the 5.
        • All Of Them Have Been Tossed

          The 8'th was the last one to be tossed. When the judge rulled there was only 1 that hadn't been tossed.
          Edward Meyers
          • Update


            I guess the judge is going with the idea that NTP can appeal the USPTO and that could take years from my previous link. I was reading another article that stated in 10/2004 that only one was tossed. Should have linked it. This link states in 9/2005 all 11 were tossed by USPTO. So there really is no waiting involved.
          • Which Raises The Question

            The court ordered them to work with a mediator to work out an agreement. When RIM goes to the mediator how can the in good faith to the shareholders negotate anything except to pay them nothing as they have no patents at this point? Where is the precedent for a court to uphold patents that the USPTO itself has ruled invalid???

            There isn't any precedent for this and it is madness. It is just another example of what is wrong with the US Patent system that the US is busy trying to push off on the world. The system is broken and when they tried to add some sense of sanity to it this year the Pharmacutical industry lobbied to make the system even more insane.Congress thankfully tabled the modified turkey of a "reform" bill.
            Edward Meyers
          • Beats me.

            Unless there was an 11:45 hour finding that hasn't been disclosed. Maybe our gov't is so broke, they get to tax $450 million income granted from a foreign corporation. I wonder what those patent #s were. NTP's website is down for maintainence. USPTO looks like I need some patience to search there. Some other time.
      • The point being, don't throw the baby out.

        I've seen you pen many articles concerning software patents and they are never painted in a positive light when in fact many of them are very positive. If you want to take up arms and force the patent office to change I am right there with you, but I am tired of hearing nothing but negatives about patents...
        • Name one positive software patent

          I really am curious.
    • At This Point There Are No Patents...

      All of them have been rejected. They shouldn't have been granted in the first place except that the USPTO policy is to rubber stamp just about anything that comes across it's desk, that isn't completly obvious, without really reseraching it. This is how creative and MS was able to file patents on the iPod interface almost a year after it was released.

      Anyhow 7 of the 8 patents had been rejected when the judge ordered them to settle it. RIM was willing to pay 450 Mil to settle it when they had just one patent left but they weren't happy with that, they wanted more.

      What a load of horsey dung!!! First they play the system and submit common practices to the USPTO, the USPTO in all its brilliance awards the patents, they then sue RIM, RIM then goes about getting the bad patents invalidated and gets 7 of them nixed, RIM offers to settle the last one for 450,000,000 dollars but they aren't happy, RIM then asks the judge to hold up on the ruling becuase the last patent is about to be overturned, the judge in all his wisdom says I'm not going to wait for the USPTO and orders them to work out a deal worth more than 450,000,000, and then the last patent is overturned.

      Tell me how this is fair.

      Shoot you have got to be joking me.
      Edward Meyers
      • Well then they need to...

        They need to ignore the mediator and take it straight to the Judge and say look, we can't come to an agreement over patents they don't actually hold...

        Then if the Judge insists on Finding in favor of the plaintif RIM gets an injunction and opens an appeal based on the fact that the company doesn't own the patents!

        I guarantee you without patents it is only a matter of time before this case is found in favor of RIM.
  • David, you should make the point

    that the Court's decision is founded on an explicit legal basis: the holder of a US patent is entitled to a presumption that is is valid. This is based on a combination of [i]stare decisis[/i] and judicial efficiency: the Court doesn't revisit a matter that has been already decided by competent authority.

    Now, of course, that very "competent authority" has disagreed with the Court. IMHO, RIM is in a very good position to request an interlocutory appeal of the law on the subject, since as far as I know there has never been a case where a District Court has attempted to enforce a patent that the USPTO has itself rejected.
    Yagotta B. Kidding
    • You made the point better than I...

      now that you've posted here, I don't know that it bears repeating. I'd be interested in some other patent lawyer takes on this.

  • Boy have you got it wrong !

    I have studied Research in Motion (RIM) and believe that they are astute business people based on the sophistication of both their legal and PR efforts. Both leave no stone unturned.

    Companies are responsible for doing due diligence to determine if they will be squatting on someone else's property. This is easy to do since all published patent applications are available to search at no cost on the USPTO web site.

    So they claim to have developed NTP's patented technology independently. Are we to believe that they never did a prior art search as part of their business plan? Or did they do a thorough search, and then did a thorough background check on the people in NTP ? Did they perhaps decide that NTP would not notice the use of their invention? Perhaps if RIM knew of the technology they hoped that NTP would not have the resources to challenge the appropriation of their patents?

    So what is it, was RIM careless and didn't check or were they arrogant and thought they could get away with taking NTP's property? If they were stupid the failure to check was their and only their fault. If they decided to be a big bully, and the litigation history makes me think they are a bully, well then RIM's situation is their own fault.

    Lets say that RIM was stupid and failed to check. They squatted on another's property and when they were caught they could have left or they could have negotiated reasonable compensation to lease the use of the property. But instead they took a scorched earth approach....and they lost. At that time they could have negotiated compensation, granted it would have cost them more for all the trouble they had caused the real property owner. But once again RIM took the low road. RIM mobilized a massive legal, PR and lobbying effort to paint the victims as abusers. RIM raped, and continued to rape NTP while telling all that NTP really asked for it. After all, NTP's technology was provocative and desirable.

    PIAUSA members had opposed the patent reexamination procedure because we felt that expanding reexamination of patents to include adversaries of inventors would increase the time such procedures would take and more importantly increase the costs by an order of magnitude. We felt that such procedures would be abused with the intent of driving inventors bankrupt. And just as PIAUSA members had predicted, RIM has abused reexamination to try and break NTP. Not on the merits, but break them with punitive costs associated with the new adversarial reexamination procedures. Something on the order of THIRTY reexaminations!

    RIM is a foreign multination corporation who has been found by the courts to have stolen an American's property. Much of the media coverage glosses over the facts and paints the victims as the guilty party. Who is pushing these misleading stories? Who gains from the media campaign?

    Howard Gutowitz received patents for his predictive text and founded a small company named Eatoni Ergonomics He approached RIM seeking a license just as he had many other companies. RIM suckered him into a declaratory judgment action whose purpose is in my view meant to bankrupt him.

    RIM has a history of such actions. I believe that it is long past time that RIM is held accountable for their conduct.

    It is long past time that the American people, and especially our government back and protect American victims of RIM from being further victimized. What has gone on in these case s is an outrage.

    Foreign company theft of American innovation is widespread. It is a serious threat to America's economic and national security. Stories like this one are far too common. The majority of inventors who produce viable inventions face a bully like RIM.

    When innovative companies like NTP have their property taken we all suffer. The American public has been victimized, for jobs and tax base which should have been created in America were stolen.

    As a matter of good public policy it is time for all branches of American government and law enforcement to get rid of their Blackberries and replace them with an American product and service such as the Palm and the NTP licensed "Good" service which does the same tasks as the Blackberry. Companies who play by the rules should be rewarded, and those who do not should be shunned.

    The Professional Inventors Alliance is calling for justice, and such justice should start with an injunction against RIM and a phased replacement of Blackberry with Palm devices. RIM should be required to issue full refunds to all who have purchased Blackberry's in America.

    Ronald J Riley, President
    Professional Inventors Alliance
    Change "at" to @"
    RJR Direct # (202) 318-1595
    • Sorry, the bottom line....

      I don't believe your opinion -- regardless of how widely it is held -- trumps the authority of the USPTO. If the USPTO is indicating that the patent may not be valid (which it *is* indicating), my belief is that the court has no choice but to postpone a decision. If, at the l1th in a murder case, new DNA evidence turns up that can exhonerate the accused, is justice served if the court proceeds as though that evidence does not exist? I'm sorry. The USPTO has issued a preliminary finding that the final patent that NTP is hanging its hat on is invalid. The court really has to wait on this.

      • Not That Simple David

        The patent re-exams can be dragged out forever - thus delaying any decision. The cards are stacked against the inventor in most cases.

        It is a given that the US cannot compete in manufacturing and that leaves innovation as our only value proposition going forward. Thus, if we do not protect our inventors - well what do we have to offer the world markets? Information?

        I can almost hear Emily Litella, "What's all this talk about an inflamation economy? Inflamation can be very painful and causes ugly rashes..." Jane breaks in, "No Emily, they're talking about an information economy."
        • can you challenge the USPTO?

          What if you think the Prior Art conclusion is wrong? Can you still mount a challange, or does USPTO have the final say?
          John Zern
          • Yes You Can

            It is my understanding that you can appeal the USPTO's ruling, then the other side can appeal again if things don't go their way and that this can go on for a very long time.
    • What's worng is the patent system...

      You are the one who is wrong. I am all for American companies competing on a fair playing field. However, when companies file patents for ideas, and then never make any USE of those ideas in actual products, I think that is wrong and stifles innovation. If NTP wants to make money from their patents, how about them actually engineering and marketing real PRODUCTS that customers can USE - like Blackberry-type devices and the accompanying servers, instead of simply filing patents so they can sue other companies to provide their revenue stream??? The reason that BBs are so popular is because THEY MEET A MARKET NEED that no other manufacturer has been able to. Can I go out today and BUY an NTP wireless device that will operate on a US wireless carrier's network and provide me with the functionality, reliability, and ease-of-use that a BB does at the same price point? If so, please tell me where...
    • and microsoft is what?

      The biggest thief in the bushes. As an inventor, what qualifies as a patent in the US is a joke.
      Stop patenting ideas and start patenting inventions.