BlackBerry Lawsuit Is Patently Absurd

By Rob Pegoraro
Saturday, February 25, 2006

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?

© 2006 The Washington Post Company