The BLACKBERRY Wars
Thanks to Ed Foster at InfoWorld for this analysis of the BLACKBERRY wars. As well as a reminder that its not only IP lawyers who get excited about things like this, it is a good overview of the present position - says she having spent some time trying to figure it out...
For those of you who have been hiding, NTP hold patents over some technology used in the BLACKBERRY. In 2003, a Virginia District Court held that the maker of BLACKBERRY, Research in Motion (RIM) infringed these patents through the BLACKBERRY. An injunction was granted but has been stayed, pending appeals. The initial appeals process is now exhausted (but contrary comments welcome from US lawyers) when the Supreme Court declined to consider whether a US patent could be infringed by products used in the US, when the key relay station, which enables the BLACKBERRY to operate, was in Canada.
Two further twists in this - the relevant patents are presently being reexamined by the USPTO and present findings are that they are invalid - although RIM say that they will pursue this further. AND in the meantime, RIM have been continuing selling BLACKBERRY products which, it would seem, infringe (if the patents are valid).
The possibility of such products being shut down by an injunction is causing uproar (see comments in attached piece) not least in the Department of Justice. The DoJ has filed a brief with the Virginia Court concerned that an injunction would have significant impact on the ability of law enforcement and health workers to operate, given the now ubiquitous spread of the BLACKBERRY.
There is a hearing on 24 February and it will be interesting to see what the court does. RIM has said that it is prepared to settle, but will not pay as much as NTP seeks in royalties. RIM also claims to have developed a "workaround" software package (which would mean that the machine would no longer infringe) to be loaded on all new machines; and which could (if required, although RIM argue this should not be necessary) be distributed during a "grace period" to existing users. Remains to be seen what NTP and the court think about that...
Closer to home, RIM has had more success with the UK and German versions of a (different) patent owned by Inpro, which would impact upon the BLACKBERRY operation, being held invalid.
So all in all, pretty messy. I think that critics of patent systems, and advocates of a new approach should read (and I know many do) such cases to be reminded of how things really work. This is patent law in action. And unless there is more direct scope for competition law questions - but can you really say a BLACKBERRY is an essential facility - or human rights questions (of emergency service workers and users but possibly also of large corporations to do business efficiently?) to be taken into account in patent infringement actions this will continue to be so. RIM have been aware of this since at least 2003. IF NTP's patents are valid, should they suffer because of the interim growth of BLACKBERRY? Or who should pay?
For those of you who have been hiding, NTP hold patents over some technology used in the BLACKBERRY. In 2003, a Virginia District Court held that the maker of BLACKBERRY, Research in Motion (RIM) infringed these patents through the BLACKBERRY. An injunction was granted but has been stayed, pending appeals. The initial appeals process is now exhausted (but contrary comments welcome from US lawyers) when the Supreme Court declined to consider whether a US patent could be infringed by products used in the US, when the key relay station, which enables the BLACKBERRY to operate, was in Canada.
Two further twists in this - the relevant patents are presently being reexamined by the USPTO and present findings are that they are invalid - although RIM say that they will pursue this further. AND in the meantime, RIM have been continuing selling BLACKBERRY products which, it would seem, infringe (if the patents are valid).
The possibility of such products being shut down by an injunction is causing uproar (see comments in attached piece) not least in the Department of Justice. The DoJ has filed a brief with the Virginia Court concerned that an injunction would have significant impact on the ability of law enforcement and health workers to operate, given the now ubiquitous spread of the BLACKBERRY.
There is a hearing on 24 February and it will be interesting to see what the court does. RIM has said that it is prepared to settle, but will not pay as much as NTP seeks in royalties. RIM also claims to have developed a "workaround" software package (which would mean that the machine would no longer infringe) to be loaded on all new machines; and which could (if required, although RIM argue this should not be necessary) be distributed during a "grace period" to existing users. Remains to be seen what NTP and the court think about that...
Closer to home, RIM has had more success with the UK and German versions of a (different) patent owned by Inpro, which would impact upon the BLACKBERRY operation, being held invalid.
So all in all, pretty messy. I think that critics of patent systems, and advocates of a new approach should read (and I know many do) such cases to be reminded of how things really work. This is patent law in action. And unless there is more direct scope for competition law questions - but can you really say a BLACKBERRY is an essential facility - or human rights questions (of emergency service workers and users but possibly also of large corporations to do business efficiently?) to be taken into account in patent infringement actions this will continue to be so. RIM have been aware of this since at least 2003. IF NTP's patents are valid, should they suffer because of the interim growth of BLACKBERRY? Or who should pay?
posted by Dr Abbe Brown at 10:08 am
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