Blackberry In Court Again Over Patents

uqbar writes "Looks like Research in Motion (RIM), the Canadian makers of the portable Blackberry email device, are back in court again. If patent holding company NTP wins their case, then RIM would be barred from selling Blackberry pagers in the US and would owe $54 million. Is this yet another case of overreaching patents gone amok?" We previously covered the original ruling in this case in August 2003.

Comments

overreaching?

[Mz6]

"Is this yet another case of overreaching patents gone amok?"

Nah, it's not like Microsoft has patented double-clicking or something... oh wait...

Re:overreaching?

[Kyouryuu]

It's purely conflict of interest. The U.S. Patent Office makes money with each patent it grants. Even the application fee alone is substantial. Therefore, there is no economic incentive for the Patent Office to deny patents, no matter how dubious they are. That's why they seem to pass through the system like diarrhea.

The irony is that now both parties and the judicial branch of the government will likely spend more money just sorting out the dilemma created by the greedy Patent Office's apathy. Not that the Patent Office cares. They already have their cash.

Re:overreaching?

[Mz6]

Wait a minute...

I have never filed for a patent before, so I am unsure of the exact process. However, I thought that fees associated with filing a patent were non-refunadable. Meaning that the USPTO will get their money whether or not the application is approved. Am I correct in this?

Re:overreaching?

[CharlieHedlin]

Ah, but if they have a reputation for granting, people will file more junk patents.

If they start rejectiong patents it would not take long for people to wise up and only file legitimate (define that how you would like) patents. Their income would fall rapidly.

Its amazing. Government is just like every company, species, etc. It grows as fast as it can given the enviroment. We need Libertarian pricipals so that we can check this, cutting fat inefficient agencies. This is just as predators check the rabit population.

Re:overreaching?

[Short Circuit]

I disagree. I think you should encourage people of heavy academic and practical training to become patent clerks.

I know it's a job I'd be interested in. Imagine seeing new ideas constantly flowing across your desk.

Re:overreaching?

[angle_slam]

Partially correct. There is a filing fee that is non-refundable, even if the application is rejected. However, there is also something called an Issue Fee, which is only charged once a patent is granted. In addition, there are Maintenance Fees, which are charged at 3.5, 7.5, and 11.5 years, in order to keep the patent from expiring.

Here is the full fee schedule. Fees of note: filing fee is $770. Issue fee is $1,330. Maintenance fees are $990, $2,090, and $3,220. There are also fees for publication ($300), filing an assignment ($40), for filing excess claims (more than 20), filing late responses to the patent office, and many more. In general, "small entities" pay half of the amount listed above, though there are exceptions.

Re:overreaching?

[Artifakt]

I don't usually nit-pick spelling, but this case was seriously funny. If we have to wait until a whole generation goes through school with libertarian principals to fix this, we're doomed. How about principles?

Re:overreaching?

[Anonymous Coward]

The CEO of NTP had this to say: "We're really going to lick rim in this case".

Re:overreaching?

[Sebby]

"Therefore, there is no economic incentive for the Patent Office to deny patents, no matter how dubious they are."

That's why I've been saying that the PTO should be sued everytime an invalid patent is found that caused financial loss to a defendant having to prove it invalid.

Re:overreaching?

[Short Circuit]

Hell. No.

That would keep me from ever applying for a patent. I've come up with a lot of neat ideas. When I tell someone who's been working in the field about them, I find out that, yeah, they've been doing that for years.

For example, at ten or eleven years old, I thought of storing video as only the differences between each frame. I'd never heard of it before, but it sounded like a good idea to me. Then I came to find out they've been doing that for a long time.

Or another example...I recently posted a journal entry about a roleplaying tool I want to write. Someone mentioned that that tool was pretty much a stripped-down MUD with some side features. I've never used a MUD before, and I'm not familiar with their features.

I'd also given thought about using interference between two inaudible waveforms to produce an audible signal. Well, we've seen that one posted on Slashdot.

I've about given up trying to come up with original ideas...someone else has already had them. And if you fine me for trying to patent something I think is original, it becomes completely uneconomical for me to try to come up with ideas for money.

Re:overreaching?

[angle_slam]

The definition is at MPEP section 509.02. It includes, individuals, non-profits, and small businesses. And I believe the definition is dependent on the number of employees rather than revenue.

Re:overreaching?

[Sebby]

How about the money the PTO has been stealing from the tax payers by not doing their job in the first place.

Besides, I doubt after one or two they would keep granting bogus patents and maybe even start reviewing old ones once they realize they are a liability....

Re:overreaching?

[CelloJake]

Exactly.

You could even have a collected database of unpatented prior art and existing patents that is available for searching.

Then upon submission, a computer could compare the information in the patent to existing patents and return a list of possible prior art or patents.

Once you receive the list, you would need to re-assert that your patent does not duplicate any of the items listed.

If after that, the human reviewer deems otherwise, it would be a strike against you. Fines would be appropriate after a significant amount of abuse, or possible just on steep slope of increasing fees for rejected patents which duplicate prior art or patents of which you were undeniably _informed_.

-Jacob

Re:overreaching?

[Kyouryuu]

Yet they are present for a reason - as incentive for inventors to come up with new ideas and be able to make some money based on them. Or, at least that's what the original premise was. The problem today is that the big companies are using the system to patent every idea out there, thereby shooing the "little guy" out of the system.

And it is, as another poster said, also the effect of lawyers becoming so heavily involved. Like it or not, our world is increasingly run by lawyers and economists, who have formed a vast array of confusing jargon and rules only they can interpret. Much like the economists who play the stock market on emotional impulse and force it to become more erratic than it should be, IP lawyers have created a system so perplexing and so confusing that their role is necessary. They manufactured a niche for themselves. And guess who can afford them? Not the individiual inventors patents were supposed to prevent - rather, the big companies. And who can afford to pay the lawyer fees to interpret patents and defend patents? The big companies.

My friend, the patent system itself is not the problem. Its abuse is the problem. That why we need some seriously hardline people at the USPO to put a stop to frivilous patents and pay special attention to companies who try to get rich on patent portfolios and patenting everything under the sun. Alas, this simply won't happen because as I said before, the USPO is a profit-minded entity. To deny big corporations would be to deny their primary source of income. It's a very blatant conflict of interest, and if it weren't for the minor fact that virtually all members of the government sleep with the big corporations, something would have changed by now.

Exiting models?

[MalaclypseTheYounger]

If BlackBerry loses this case, does that mean I can give back my BlackBerry that my job makes me carry around with me 24/7?

FreeEEEDOM!!!

Or better yet, maybe my Blackberry will have to meet a certain 'accidental' demise, and they will be unable to give me a new one due to this patent hearing.

Re:Exiting models?

[afidel]

The blackberry is basically a limited PDA environment with build in cellular data service (and voice too on a couple of the really expensive models). How they ever got to be so popular I have no clue. We used them at IBM for dispatching calls to us field techs but the coverage was really poor and any PDA with a cellular addon would have been tons more usefull (like say for accessing map sites since we were driving to new locations every day). My only guess is that RIM/Cingular is able to make private networks for large customers that make them feel more secure then a general IP solution would.

Re:Exiting models?

[Entropius]

I have a friend who's a clerk for a law firm in town. They make her carry one of those beasties around 24/7, and leave it on 24/7. If she turns it off, the Masters know about it.

They can even do GPS tracking with the things.

Incidentally, I can't think there's anything about this device that's patent-worthy. The use of a new networking technology (in this case DPMS or whatever the IP-over-cell-phone protocol is) to do the same old networking stuff isn't patentable, since it's such an obvious application.

The development of practical electrical generation and tramsmission methods is worthy of a patent.

So is running that electricity through a tungsten filament to produce light.

The subsequent development of the alkaline battery is, perhaps, patentable.

The combination of those alkaline batteries with an incandescant bulb to make a flashlight should not be patentable.

Re:Exiting models?

[jjjefff]

Yeah, and then they'll give you a handheld running Windows CE... Might wanna rethink this plan.

Re:Exiting models?

[mccrew]

How they ever got to be so popular I have no clue.

Simple, really. They do one thing, e-mail, and do it well. Very well. Better than anyone else. It is easy to use. They have the common use case down cold.

E-mail is the golden nugget. PDAs, even wirelessly enabled PDAs, are a dime a dozen. Heck, even cell phones are a commodity - cell providers have to give away the product in order to get people to buy the service.

Having a Blackberry will save you an hour a day. The competion is clunkier and harder to use. They don't call 'em "Crackberry" for nothing.

Re:Exiting models?

[Techguy666]

Not entirely. Here's another link to the story (from the Toronto Star's business section):

http://www.thestar.com/NASApp/cs/ContentServer?p ag ename=thestar/Layout/Article_Type1&c=Article&cid=1 086559808952&call_pageid=968350072197&col=96904886 3851

The most interesting quote is this:

"My guess is that rather than an injunction, NTP would rather have ongoing royalties," said Marc Kaufman, a patent lawyer with Nixon Peabody in Washington. "The time you really want an injunction is when you have a competing business.''

That means you not only keep your Blackberry, but RIM's gonna charge your company more for it to pay royalties to NTP... Which is going to increase your company's demand for a "Return On Investment" on these products... Which means you'll be called more often!

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[account_deleted]

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Same case, this is the appeal.

[JasonUCF]

The headline is a bit misleading. Today is RIM's day in court for hearing on its appeal to the August 2003 decision where they were effectively slapped around.

The Register and a few other newsies reported that RIM and NTP have tried to come to a royalty agreement, but so far have not budged.

You can bet as soon as RIM loses this appeal (likely), they will very quickly come up with a royalty agreement for NTP, and life will go on.

IANAL. I play one on slashdot.

Re:Same case, this is the appeal.

[happyfrogcow]

headline: "Blackberry In Court Again Over Patents"

lets analyze.

First word: Blackberry
Who is this article about? Blackberry.

Second+Third word: In Court
Where is Blackberry? In Court

Fourth word: Again
So they have been there before? Is this a continuation of the previous dispute? Yes and yes.

Fifth+Sixth word: Over Patents
Why was Blackberry in court again? Over Patents

Now, why was this misleading?

It's a new business model...

[acariquara]

...suing your enemies into oblivion.

Wait, I think Microsoft got that patented, scratch that.

Re:It's a new business model...

[s4m7]

Wait, I think Microsoft got that patented, scratch that.

Microsoft may have the patent, but I thought they sold an exclusive license to SCO for this new "sue them into oblivion" technology.

In other news, MS has announced a fatal flaw in their "sue them into oblivion" technology, and will be releasing a service pack sometime in the next 90 days. seems in the current version you actuallly have to have a case.

Re:It's a new business model...

[jonbryce]

To be fair, I don't think Microsoft generally sue people over stupid things, with the possible exception of Lindows/Linspire.

Prior Art

[PktLoss]

It seems like the court case should have waited pending an end to the resolution of the US Patent Offices' re-examination of the patents in question. The whole thing becomes a non-issue if the patents are thrown out.

CEO's response

[Anonymous Coward]

The CEO of NTP had this to say: "We're really going to lick rim in this case".

Operation Hammertime

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[account_deleted]

Comment removed based on user account deletion

Re:Does anyone

[Marxist Hacker 42]

I do- does this cover my use of my private pager to keep track of network outages at my house? (pager is numeric only- usage is a self-written monitoring program that checks LAN and WAN pings, incoming e-mail, and caller ID and sends numerically coded messages through dialup of a standard Winmodem). I kind of doubt it- but the article doesn't seem to include ANY hint of what the patents do and do not cover.

Freedom...

[hitech69]

Didn't someone once say that "freedom is just another word for having nothing else to lose". Hmmm... don't think America is very free anymore, and the patent system is not only wasting the industries time, it's wasting the justice system's time dealing with all these bogus court cases. What really scares me if one of these looney judges rules in favor of upholding these vague patent claims.

Re:Freedom...

[picklepuss]

Actually those are lyrics from "Me and Bobby McGee" by Kris Kristopherson. It was first popularized by Roger Miller in 1969 (#12 Country hit) and later appeared on the 1971 album "Pearl" by Janis Joplin

lyrics and info

Freedom's just another word for nothin' left to lose
Nothin' don't mean nothin' hon' if it ain't free, no no

I guess this means...

[Anonymous Coward]

No more RIM jobs. * SIGH *

Should be a time limitation!

[Anonymous Coward]

Why is this kind of delayed lawsuits even permitted? If someone is infringing on your patent(s) it should be your right and DUTY to enforce your patent immediately. These guys instead wait, let the infringer spend money and make money, and THEN they sue for larger amounts than would otherwise have been sensible.

Are we to believe they hadn't heard of the Blackberry until recently? Ludicrous!

Re:Should be a time limitation!

[millahtime]

Why is this kind of delayed lawsuits even permitted?

It's simple. They are allowed because they make lawyers and the court system a lot of money.

Re:Should be a time limitation!

[angle_slam]

There is a limit. 35 U.S.C. 286 sets a time limit on damages such that "no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action."

Re:Should be a time limitation!

[Artifakt]

There ARE certain limits to the time fileing an action can be delayed in the US (Note: I Am Not A Lawyer). However these times are long for the present situation. Normally, it is possible to dismiss a claim if the filer waited over six years from when they knew about the infringment. Even that rule is limited by other factors, such as whether there is also criminal and not just civil misconduct involved. I'ts not automatic either, a judge still has to decide it applies.
A lot of the precidents in cases such as this go back to a time when the fastest means of notifying someone was horse and rider. Six years doesn't sound so long when messages might take six weeks each way. It was once routine for attempts to settle out of court to take over a year on correspondance alone, regardless of the time spent actually negotiating.

What goes around comes around

[augustz]

RIM has sued tons of companies on patent infrigment (they patented every little thing they could). For example.

Research In Motion, makers of the RIM Blackberry smart pager, has filed suit against Handspring alleging that Handspring's Treo communicators violate one of their patents. Specifically, RIM claims to have a patent on the curved keyboard layout used by three of the four Treo devices (the Treo 180g uses Graffiti character recognition instead) as well as on the rounded buttons. No information is available regarding what damages RIM is seeking.

So I have a bit less sympathy for them. What goes around comes around.

Re:What goes around comes around

[javatips]

I feel the same way... I'm canadian and I like it when canadian companies are successful. However, when the company is abusing the patent system, then I will not drop a single tear if they become the abused party.

I also do not care very much for a company that sell product that are overpriced and who did not innovate very much since the launch of their first product.

Re:What goes around comes around

[shepd]

>RIM has sued tons of companies on patent infrigment (they patented every little thing they could).

Yup. That's how they got the nickname, "Lawsuits in Motion". Let's not forget about RIM Park, which they managed to weasel their name on to despite the city's population having to pay an additional $35.26 tax (5.47% of taxes overall) just to cover the city's funding of the park. Can someone explain to me how you can get your name on a park without either paying for the whole thing, or being a dead celebrity?

Re:What goes around comes around

[lightsaber1]

In defence of RIM, there are differences here: 1) RIM actually produced the thing...NTP produces nothing. 2) RIM's patent isn't nearly as broad as NTP's.

RIM (specifically Mike Lazaridis) put a lot of effort into perfecting that keyboard for thumb typing and it is what the blackberry was built around. So yes, there was a lot of innovation there. It seems simple now, but at the time, it was a novel idea.

Of course, I may be biased here because RIM was founded and is based right beside where I go to school (U of Waterloo), and they contribute a lot to and hire a lot of students from said school.

Re:What goes around comes around

[stor]

RIM (specifically Mike Lazaridis) put a lot of effort into perfecting that keyboard for thumb typing and it is what the blackberry was built around. So yes, there was a lot of innovation there. It seems simple now, but at the time, it was a novel idea.

Ohh! A novel implementation of a keyboard. Wowie zowie! Heard of the "twiddler"?

Just because you've invested a lot of time reasearching something you don't have an automatic monopoly on it.

Can you imagine if Fender had patented the Stratocaster guitar shape? Or Microsoft with the mouse scroll wheel?

The problem here is greedy people with delusions of their own self-importance.

Cheers
Stor

Again, I refer to two organizations..

[the_rajah]

who are working to make our patent system a bit more fair and help with reducing the current abuses we are seeing. Pubpat Electronic Frontier Foundation

"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain

Re:So just

[Stitch_626]

My suggestion is Raspberry!!!

Thbbbbtttttt!!!!!

Re:So just

[Entropius]

That would work if the issue was trademark violation.

But it's not.

Trademarks are what you call something; patents are what it does.

Not quite

[igrp]

Around here, there's still two groups of people who still carry pagers: doctors and law enforcement officers. The pager system is still way more robust than GSM and serves as a fallback system for a lot of law enforcement agencies.

Doctors still carry them for two reasons: first of all, they're safe. Pagers have been in use for decades and are known to generally not interfere with hospital equipment (unlike GSM phones, which can cause really weird behaviour in some monitoring equipment). And secondly, they're reliable. In an emergency situation, when everybody grabs their cell to check on their loved ones cell coverage usually drops to 0% in a jiffie (yes, I know that GSM networks can be configured to prioritize certain SIMs through the HLR but I can tell you from experience that that doesn't really work reliably). Pagers, on the other hand, don't need a lot of bandwidth and work reliably.

Having said that, Blackberrys were a nice idea when they were first introduced. These days, though they're useless without effective filtering. I am subscribed to a bunch of mailing lists and I don't particularly like the idea of staring at a small b/w device for long periods of time to find that one important email I happen to be looking for. That's especially true if I have instant access to my IMAP account using my PDA (using WiFi, which tends to drain the battery, or my cell phone). Plus, around here, there's usually a computer nearby no matter where I go.

What a silly patent.

[Entropius]

NTP in November 2001 filed a complaint contending that RIM's products and services infringe on at least five NTP patents (numbers 5,625,670; 5,631,946; 5,819,172; 6,067,451 and 6,317,592) granted by the U.S. Patent and Trademark Office (USPTO) covering the use of radio-frequency wireless communications in e-mail systems.

Does this mean that every time I use wlan0 instead of eth0 to check my mail I'm infringing on their patent?

More generally, I would think the Amateur Packet Radio people would have some prior art on this. APR has been around for a while, I think... and certainly someone has used it to check mail.

curved keyboard?

[twitter]

how innovative.

Who'd have thunk it?

That's never been patented, has it? Not while people had sense, that is. It's so surprising that people find new keyboards.

Prior Art

[igrp]

APR has been around for a while, I think... and certainly someone has used it to check mail.

Well it's at least been used for that purpose since 1987. I think that's the first time I saw two BBSes being connected using amateur radio equipment. Must have been two Fidonet boxes. The connection wasn't quite stable but it worked.

Courtesy

[planckscale]

I for one, welcome our Canadian overlords!

Re:Courtesy

[Anonymous Meoward]

You live near Tampa Bay, don't you?

Source of the quote

[addie]

"Freedom is just another word for nothing left to lose"
- Kris Kristofferson and Fred Foster
from "Me and Bobby McGee"
(popularized by the late, great Janis Joplin)

Live by the patent, die by the patent

[marderj]

It wasn't too long ago that RIM managed to crawl out of a hole by filing frivolous lawsuits for patent infringement. Remember when they filed suit against Handspring over the elliptical shape of the buttons on the keyboard? They justified it by saying they 'invested substantial research and development and marketing effort' into the design and it wasn't fair that Handspring should be able to reap the rewards of their hard work. A fucking keyboard. I hate to see another stupid patent lawsuit, but I have a hard time being sympathetic to their cause. As far as I'm concerned this is poetic justice.

Just sit back and wait.

[Spudley]

I don't know the story behind this particular patent case, but in the broader argument about patents, I've given up.

I've decided that the best thing now would be for the whole computer industry just to stop and wait for twenty years. When all these stupid patents finally expire, then the rest of us can start actually doing stuff with our computers. Until then, we may as well all just go home, because as I see it, just about anything I do is going to tread on someone's intellecual property. (and I use the word 'intellectual' in it's loosest possible sense)

Just a thought.

[Saggi]

If this goes on for much longer the US will become a low-tech country. It will not be possible to invent or put new technology out on the market there, just because of the risk of getting to court. The market will move elsewhere and only old and tested devices (that have certain "prior art") will remain in the US.

Luckily I live in Europe...

But will the European Union adopt the same madness as the US? If this becomes the case we will see new technology evolve in Asia... (did anyone mention China?)

Just a thought.

Translation

[saddino]

Is this yet another case of overreaching patents gone amok? = "Is this yet another chance to stir your typical /. reader into a frenzy?"

Really folks, the very mention of the word patent here results in typical anti-IP diatribes; often neglecting what is actually actually debatable and interesting: the merits of the patent in question, its defensibiblty and its consequences.

The poster's asking himself the aforequoted question betrays he didn't even bother to read the patent.

Is it time to add "-1 RTFP" as a moderation type?

MikeRoweSoft.com

[acariquara]

Yeah, that and MikeRoweSoft.com

Re:MikeRoweSoft.com

[jonbryce]

True, that one as well.

Both of them are trademark cases, and while they can be a bit of a nuisance, they aren't anything like as bad as patent cases. It's usually possible to work round a trademark violation - you can change the name. Can cost a bit of money, and is a pain if you have built up brand recognition under the old name, but it can be done.

Patents, on the other hand usually can't be worked around without making your product inferior to the competition.

second verse of the SAME case

[werdna]

Blackberry attacked on both noninfringement and invalidity on summary judgment, and lost. They went to trial on both issue, and lost. They argued against injunctive relief, and lost.

So the patent is certainly sufficient to pass the smell-test.

They are now before the Federal Circuit to determine whether the court errred below, Blackberry's last gasp to survive.

time will tell whether the plaintiff will prevail at this point, but overreaching, after a full trial on the merits? you have got to be an ideologue even to ask the question.

if it is halfway cool and enabling..

[samantha]

then the US Patent System and the courts will attempt to shut it down. Since we privatize spectrum at high price every player needs to recoup their costs. This generally means that you and I will get nickel and dimed to death for one little bitty service slice at a time. It is against the interest of all these players if anyone offers too much for too little or, in other words, actually begins to bring more of the full benefit of wireless connectivity to the users.