Another NTP Patent Invalidated

darkmeridian writes "Bloomberg reports that the PTO has granted a non-final rejection of a third NTP patent asserted against Research in Motion in the Blackberry litigation. Five patents have been asserted against RIM, and only one of the three rejected has been found to be valid and infringed. Yet this development helps RIM as it seeks to avoid an injunction against operation of the Blackberry network pending appeal."

Comments

Not much sympathy

[augustz]

Research in Motion was the leader in a lot of this patent litigation.

http://news.com.com/2100-1040-958550.html

I remember them suing over everything, Good technology, handspring with the treo, etc etc.

In this case, NTP is clearly just a patent litigation machine which is worse, but everyone's been using these patents to muscle around in the marketplace...

Competition is superior to force

[dada21]

These patent procedures are really impossible to understand. There are so many confusing patents that no one, not even the PTO, can wade through them all. Is it fraudulent for companies to try to take advantage of the legal use of force that patents offer?

There's no solution to this government atrocity except complete dismantling. Before I was a believer in anarchocapitalism, I thought the best solution was to file a patent and immediately pay a tax on sales, a tax that increments every year until the company releases the rights. I see taxation as theft, so I don't support that process anymore.

My solution? Obfuscation. There is nothing that truly needs a patent (not even prescription drug research once you consider the high ost of regulations). Items that are revolutionary can be protected, temporarily, by hiding the process. The more a competitor wants to knock off your product, the more they'll need to invest to figure it out.

Let's forget even protecting secrets. Thousands of competing patents cover competitive products, but the patented features don't sell the product. What sells it? Ease of use, marketing, quality, safety and support. The patented portion supports very little in terms of sales.

Some Korean bootlegger released a $50 iPod knockoff already. It is a piece of junk. Apple has little to fear because their name sells product based on people's past experiences.

Just like long term quality content gets your website into a high position in the search engines, the same is true of products and services. Use competitiveness instead of force to earn your future.

Re:Competition is superior to force

[the eric conspiracy]

These patent procedures are really impossible to understand.

THere are a lot of things in this world that are not easy to understand. quantum electrodynamics, reinnman geometry, organic chemistry, tort law, female psychology. Just because you haven't mastered an understanding of something doesn't mean it should be discarded or it isn't very useful.

Items that are revolutionary can be protected, temporarily, by hiding the process.

It is amazing how bad an understanding of history people have. What you are describing is the practice of trade secrets as existed prior to the invention of the concept of the patent. We have been there and done that. It doesn't work.

Use competitiveness instead of force to earn your future.

Your model would completely eliminate any economic progress. Large companies would be free to copy an idea, use it in their products and use their market position to crush any new ideas. I cannot imagine a more disasterous idea.

No tears for either patent troll

[lheal]

Here's a gem from the tail of TFA:

If a company loses a patent, it can no longer license it to other companies that make products. NTP's primary business is licensing patents that it owns. It makes no products.

In other words, they're parasuits.

Re:They wont shutdown anyway

[temcat]

Before making this weak attempt at sarcasm you should have consulted a dictionary and understood the difference between patents and trademarks.

Economist's comment on the patents, NTP and RIM

[mi]

To quote their article:

Distressed BlackBerry users argue that too many of the world's workers rely on the device for the service to be shut down. But many of their jobs depend on the principle at stake in this case -- that the courts should protect intellectual property because it rewards inventors by conferring a real title to an intangible asset. Business requires confidence that intellectual property will be respected and infringers brought to justice, regardless of whether the litigant is using the patent or not. Only with that security will firms patent and license their inventions, thus allowing others to use their ideas.

Re:They wont shutdown anyway

[cbreaker]

Hey, cluless. Patents don't protect against TRADEMARKS.

A lot of people out there that are against software patents are actually against the length of the patents. In 1922, if you developed a special kind of chair, you'd patent the design and you'd be able to sell it for several years before other people could use your design. With those slower times, it was resonable. And patents genetally protected inventions - and physical objects.

Enter the field of computing. And think back 7 years. What technology existed then? Color LCD was crappy and expensive. Windows 98 was just released. The Internet was just getting into full swing. Cell phones were mostly analog. Things move a lot faster in the technology world, and a seven year patent on a key technology can stagnate the industry and have a huge impact on adoption rates, prices, and innovation.

But, if that was the only problem with patents, it might not even be that bad. The fact is, companies are filing so many patents these days to take advantage of the system. They're patenting things they can't create - theory. They patent things that are obvious. The patent offices can't keep up, and they make mistakes by granting patents when they really shouldn't. It's causing a huge problem.

Work-around for obvious patents

[Greeneland]

It seems to me you could get around the RIM situation by doing the following:

1. find the oldest net-based email-solution you can and use the source without any modifications whatsoever. (better yet use the binary if possible)
2. build a layer on top of it to interact with what is now a local app. It should be possible to use specific screen-grabbing, techniques, etc., that have been in existence for ages to avoid yet more patents.
3. wait for NTP to explain how you infringe their patent using source code that was written back in the dark-ages of the net.

Of course I have not read the actual patent (why should I when it will only give me a headache and someone else here will sum it up eventually), but it should be critical until the patent system changes to find ways to get a JURY to understand what is the difference between one technology and another. If all the patent does is take e-mail and "do it over the cell network", then it should be obvious to everybody (except a JURY it seems) that the application is the SAME (and by actually using an old application you can perhaps make your point), but SOMETHING ELSE is different. The cellular wireless network. And therefore, unless the patent covers the invention of a cellular wireless network, they should perhaps have the book thrown at them for various reasons I will not mention.

Re:Work-around for obvious patents

[Greeneland]

The issue of unobviousness is key in that the email application created to perhaps run over 10-base2 ethernet and novell ipx, then later over packet-radio, then later gets deployed on a system running 10-base-t, then later deployed on another system running 100-base-t then later deployed on another system running 1000-base-t, also deployed over cellular wireless is later found to be infringing when:

1. it has not changed
2. it is operating exactly as it had been designed, to exchange email over a network.
3. the network can be demonstrated to have changed many times over the years and yet now this wireless network is somehow special compared to other wireless networks (besides packet radio) that it no doubt has been used with? how can a combination patent be unobvious and valid when many such combinations have occurred over time and yet there are no demonstrated differences?
4. it has not been demonstrated how an application interacting with a NIC necessarily has any relevance with how the NIC interacts at the physical layer.
5. the evidence would seem to indicate that historically, using existing applications over new networking technologies is indeed both obvious and generally cost-saving.

In these cases and in regards to the NTP patent, I have to disagree over who had invented what. I understand what you are saying, I simply disagree with the value of these types of patents and I will contend that they are not moral, useful or unobvious.

What's wrong? *No value add*

[lenski]

Retailers, grocery stores provide a clear value add (a.k.a. service): They *make the products accessible* to a broader marketplace of customers with shipping, inventory, marketing, establishment of quality name, et cetera et cetera.

Now compare that to NTP. They provide *no value add*. No work, no service, no accessibility, no publishing. If on the other hand, they make the ideas accessible to those who would like to license them, *that* would be a value add.

As far as I can tell, NTP simply held some patents (silently) until they saw a company that had done its own research and actually did the work to build a profitable business. *Then* they jumped on RIM's "infringement" of "their intellectual property".

I consider this to be the equivalent of a company like NTP staking out a legal but private claim for a piece of land in the middle of a public place, unmarked. Someone comes along and sets up a fruit stand in what they think, incorrectly, is legal open place. After investing effort in building their business, NTP comes along and says that the fruit-stand builders owe them 3 years in back rent.

The issues here are twins: 1) NTP didn't say anything to anybody about "their" ideas. 2) They waited until RIM had invested *big money* in their infrastructure, not knowing about the virtual landmine.

Classically, patents existed to enable the patent-holders to receive a return on their research investment and to get the ideas out into the world to serve as bases for conteinued economic development. NTP's behavior is exemplary of an economically abuse of the patent system.

It's worth noting that patent language is so impenetrable, and the numbers of patents so massive, that it (the patent system as it stands today) probably can no longer serve its original purpose. As a developer, how do verify that

a) my code doesn't infringe one of hundreds of thousands of software patents

b) If I discover that some element of my work happens to be patented by someone else, can I license it for a price that doesn't eliminate the remaining shreds of margin that I still have?

Re:What's wrong? *No value add*

[mi]

Now compare that to NTP. They provide *no value add*. No work, no service, no accessibility, no publishing. If on the other hand, they make the ideas accessible to those who would like to license them, *that* would be a value add.

First of all, I absolutely reject this criteria. One must be entitled to enjoy her property, even if he does not do anything (perceived by others as useful) with it.

But you are wrong. NTP and entities like it certainly make our lives better by paying inventors for their ideas. This allows inventors to make a living inventing.

They waited until RIM had invested *big money* in their infrastructure, not knowing about the virtual landmine.

This is simply, as they say, factually wrong. NTP first contacted RIM in 2000, a year after the service was introduced. RIM chose to fight, and lost...

It's worth noting that patent language is so impenetrable, and the numbers of patents so massive, that it (the patent system as it stands today) probably can no longer serve its original purpose.

This may well be true. But it is not NTP's fault. Patent system needs fixing, but ideas still have value. And thus they must remain sellable, and the ownership of them must enforced.

Here is an article on the subject -- my other post with a link to it gets slowly down-modded by dimmer mods.

Re:What's wrong? *No value add*

[Waffle Iron]

One must be entitled to enjoy her property, even if he does not do anything (perceived by others as useful) with it.

Patents aren't intended to be "property". They're intended to be an economic incentive to promote progress in arts and sciences. Any property-like features are a side-effect of the current implementation of patents. Such windfall benefits for the patent holder should not take priority over the utility of patents in benefiting the overall economy.

In particular, snatching up a bunch of cheap obscure patents, sitting around waiting for someone to do the hard work of independently re-inventing them, and then pouncing on them with a lawsuit is beneficial to no one besides the patent troll, and this practice should be totally prohibited.

Re:What's wrong? *No value add*

[Waffle Iron]

An intelligent inventor would do a patent search up front to avoid the "hard work of independently re-inventing.

Nobody searches software patents for ideas, especially high-level fuzzy ideas like "wireless e-mail". Do you honestly think somebody is going to be sitting around saying: "Gee, I'd love to read e-mail with a mobile device. I can't imagine how to do that, though. Oh, I know, I'll search for a solution at the USPTO! .... Well I'll be damned, it turns out you can do it with wireless radio! I would never have thought of that. This just saved me years of research! I'll get in touch with these people to license their innovation right away!"

This concept known as "designing around" other patents is a key feature of the patent system.

If that's true, why don't we just arbitrarily outlaw random ideas? That would spur all sorts of new innovation. Maybe we should start by outlawing wheels, that way we might finally get to drive flying cars.

Re:Invalidate them all

[tepples]

There is such a thing as licensing you know.

Problem is that current patent law sees no problem with sitting on a patent and refusing to entertain offers to license. Title 35, United States Code, section 271(d). Though laches is potentially an effective defense against patent trolls, it has become much too hard to prove laches nowadays.

Slashdot is to patents what Fox News is to Facts

[back_pages]

The summary of this article is blatantly factually incorrect. Anyone with any knowledge of the patent system knows the difference between "invalidated" and "non-final rejection from the USPTO".

Ever wonder why it's so rare that anybody with any influence over the patent system pays any attention to the rants and raves of Slashdot, free software, open source, etc.? It's because these groups very rarely, if ever, have a clue what they're talking about.

Before you reply to flame me, think about what the word "marginalized" really means. By refusing or not bothering to become educated on the issue of patents, a huge majority of Slashdot's readship marginalizes itself and renders its thoughts and opinions irrelevant.

"Non-final rejection" equals "invalidated"? That's a joke, right? Surely the article is a troll. Nobody with any self respect would seriously submit that as a story unless they were pulling a prank on Slashdot's editors.

Not Really

[thebdj]

Yet this development helps RIM as it seeks to avoid an injunction against operation of the Blackberry network pending appeal.

The judge in the case seems pretty reluctant to listen to RIM when it comes to the re-examinations going on before the PTO. The judge might still institute an injunction and that could force RIM to settle. This is particularly bad because if all the patents are invalidated then there would be no reason to have an injunction or a settlement and would cost RIM a lot of money. I think that if the judge does order the injunction RIM will go ahead and continue to appeal the process and prevent the injunction as long as possible.

The judge also refused to await for a decision in the MercExchange v. eBay case currently before SCOTUS that pertains to injunctions. RIM is still challenging to SCOTUS that they are not infringing because their routers are maintained in Canada and they are a Canadian company. Their argument may have some merit and it could just stop the whole case in its tracks. RIM has and will keep trying to avoid the injunction as long as possible, until the PTO cases go final or until SCOTUS makes a ruling in eBay case or decide to hear their case on jurisdiction.

Report wildly overstates the relevance . . .

[werdna]

The issuance of non-final rejections in a patent case before the PTO is all but routine -- indeed, it is rare that the PTO does not issue at least one non-final rejection of one or more claims in a patent application or reexamined patent. Please take the time to learn what a non-final rejection is and means. To suggest that mailing of an office action constitutes "invalidation" of a patent is to manifest supreme ignorance of the patent process.