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Total 180

December 29th, 2005

The Blackberry patents case fascinates me, and regulars will remember I’ve written about it before. I really had my money on the whole thing falling apart for RIM (the maker of the Blackberry) and expecting a billion dollar settlement. But if this New York Times article is to be believed I was way off the mark.

Appearantly the USPTO has taken particular interest in the five relevant patents and hurried the review requested by RIM. Not only has it been hurried, but they sent letters to the parties indicated they intend to invalidate all five patents. Couple of interesting items to note here:

  1. The trier of fact in the infringment suit is usually the entity who is responsible for determining validity. I’m not fully familiar with the administrative law surrounding the USPTO, but my guess is the Federal Court is free to take the PTO’s final action as simply advisory.
  2. Why did the USPTO rush this review, of all reviews? Lots of reviews are pending and will make a world of difference to a wide set of cases, so what makes this one special? It certainly isn’t the federal judge’s comments that things are going slowly… agencies don’t tend to listen to judges untill they start issuing orders. My guess is Blackberry’s got a few angels in Congress who pulled a few strings.
  3. What does this outcome, from a billion dollar infringement to no infringement, say about the reliability of our patent system? Gives a lot of creedance to those who are trying to reform the patent system. The worry, though, is that the reforms are going to be more corproate friendly instead of being more inventor friendly.

The case remains alive, so the situation is far from settled. NTP is sure to appeal and the judge might throw out the PTO’s finding of invalidity. I’ll continue to watch and maybe, just maybe, by the time I get to DC the Blackberry craze will have passed.

probonogeek Law

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