[Mb-civic] BlackBerry Lawsuit Is Patently Absurd - Rob Pegoraro - Washington Post Op-Ed

[William Swiggard]

BlackBerry Lawsuit Is Patently Absurd

By Rob Pegoraro
Saturday, February 25, 2006; D01

I don't use a BlackBerry and have no interest in doing so. I don't need 
yet another gadget to haul around all day, much less one that would 
handcuff me so tightly to my work e-mail. And I think it's more than a 
little creepy when people brag about how addicted they are to the little 
wireless pagers made by Research in Motion.

But seeing that Waterloo, Ontario-based company writhing in 
patent-litigation agony gives me no joy either. Years after McLean-based 
NTP Inc. sued RIM for allegedly copying wireless mail-delivery 
technology it had invented -- and even as the U.S. Patent and Trademark 
Office has begun rejecting NTP's patents on review-- BlackBerry users 
still don't know if they'll need another way to be interrupted by e-mail 
all day long.

Yesterday, U.S. District Judge James R. Spencer declined to impose the 
injunction NTP had sought but suggested one would be coming soon. A jury 
found RIM guilty of patent infringement back in 2002, and the judge said 
that's all that really matters in deciding a penalty -- even if NTP is 
in no position to offer a replacement service to BlackBerry users.

This is the kind of legal oddity that has people wondering if the patent 
laws serve anybody besides patent lawyers. It seems unfair that a 
company can work hard to develop a good product, then get mugged in 
court this way.

Just ask the targets of RIM's own patent lawsuits: In 2002, RIM sued 
software developer Good Technology for its wireless mail-transfer 
technology and "smart phone" maker Handspring over its miniaturized 
keyboard design. Both wound up forking over licensing fees.

Live by the legal brief, die by it: If Judge Spencer issues that 
injunction, RIM will have to shut off its mail servers or roll out an 
unspecified software update that won't copy NTP's patents. It will also 
have to cough up at least $240 million in royalties to NTP.

Sound crazy? The RIM-NTP fiasco isn't nearly as loony as many other 
escapades in patent law. Other companies have asserted ownership of such 
things as the image format used in digital cameras, hyperlinks on the 
Web and different types of online auctions.

Many of these land grabs have been rejected in court, but the targets of 
these lawsuits -- and their customers -- can still lose anyway. Xerox 
sued Palm over its Graffiti handwriting-recognition software and 
ultimately lost, but Palm had already switched to a different, less 
effective program by then.

The RIM-NTP trench warfare is having one helpful side effect: It's 
putting this problem in the headlines and making the many BlackBerry 
users on Capitol Hill realize what's at stake.

It's not that NTP never turned its ideas into a product. The patent 
system doesn't reserve success to owners of factories and laboratories; 
the guy living in his parents' basement is allowed to sell his idea to 
people with those resources.

No, the problem here is simpler. There are too many bogus patents 
getting handed out.

One solution would be to make more things unpatentable. Just as you 
can't -- or shouldn't -- be able to patent a mathematical equation, in 
this scenario you wouldn't be able to claim ownership of things like the 
general workings of software (any individual program is already 
protected by copyright) or business methods. The U.S. has been a pioneer 
in turning those things into new types of intellectual property; perhaps 
it's time to declare this experiment a failure.

Another, somewhat overlapping solution would make it harder to get any 
patent. The patent office would apply a higher standard of 
"non-obviousness" -- the idea that a patent shouldn't reward 
"inventions" any competent individual could have thought up. And any 
outside party could submit evidence against a patent before it became final.

The first idea has a refreshing clarity about it, but also seems a 
political nonstarter, given the amount of money involved. The second 
one, however, has some logic of its own.

If patents should benefit society at large -- the Constitution invokes 
"the Progress of Science and useful Arts" as the reason for allowing 
them in the first place -- then why can't society at large get some 
input on their creation?

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022401991.html?nav=hcmodule
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