And the saga continues....
Last Friday a Federal Judge prolonged the anxious misery for millions of Blackberry addicts by declining to rule on an injunction that would have compelled Research In Motion to shut down Blackberry Service for infringing on the patent held by NTP. 3.2 million Users took a sigh of relief and Wall Street brokers collectively took a collective step away from their windows as the stock price went up 8.2% to $75.28.
But what's left (until the next court appearance) is a confusing standard of patent protection when the "public interest" opposes patent law. This quote from the New York Times captures the problem:
"Any shutdown would not have stopped service provided to the government and certain other emergency responders like the Red Cross. The shut down also would not affect the 1 million Blackberry users in Canada, Europe and the rest of the world."
Earlier in the month the Department of Justice even filed a brief that called protecting Blackberry a matter of national security.
Supposedly RIM has created a workaround named Blackberry® Multi-Mode Edition, that will allow users to download a patch and preserve Blackberry functionality without infringing on NTP's patent. With Friday's ruling non-ruling, Blackberry has not yet needed to activate the changes.
Of most interest to me is the selectivity of the shutdown. Is there any precedent for that? If the courts play favorites what will that mean for the innovation industry?
I've asked my friend Brian Leubitz to comment. Brian is a fellow GSPP student and a "recovering patent attorney" he runs the brilliantly named California politics blog Calitics.
Comments
Sasha posed a bunch of questions. First, as to the crafting of an injunction to exclude certain infringing uses from the injunction, that happens fairly often. The design of an injunction, which are typically written by the prevailing party with the judge's approval, is somewhat of a flexible task. While it can be cut and dried, that is rare. As it is a remedy based in equity (as opposed to being based in law, which generally yields monetary damages), fairness must always be considered. Judges will rarely, if ever, accept an injunction that says "X must stop infringing Y's patent." So, in terms of excluding some infringing uses, this potential injunction wouldn't be all that exceptional.
What is somewhat unusual is that the selectivity of the injunction would be based on the customer profile, rather than a categorization of the infringing use. Still, it's not entirely unheard of though. The government does not like to be caught in the middle of patent disputes, so these things occasionally happen (defense industry, that kind of thing).
In terms of what the Blackberry shutdown will mean for the future of innovation: well, that's yet to be determined. I'm of the mind that patent rights are pretty important. RIM got itself into this mess by being cheap up front. NTP had patents, offered RIM a license for a fairly reasonable price. After NTP sued, Blackberry again had opportunities to settle the case. But they did not pursue this option, instead choosing to fight the patents. Blackberry has been judged to violate those patents. I believe that injunction should be issued if there is no settlement. If we allow one corporation to violate patents because their product is so important, then what is the value of the patent? That would essentially be saying that the most important patents, the most valuable patents, are really worthless. Patents are nothing more than a piece of paper without the ability to enforce them. If the Blackberry injunction is not issued, based on equity and importance to the economy, innovation WILL be stifled. Period. End of Story. Why would corporations pursue research if there is no tangible reward for them at the end? And if they do the research, why would they disclose anything? Both goals of the patent system, disclosure and encouragement of research, would be severely undermined.
RIM now has two choices for moving forward with the Blackberry line, get a license from NTP or stop making the infringing products. So far they have hinted that they will pursue the latter course by using the "Multi-mode" workaround design. And that's fine, if the workaround truly doesn't infringe the patents.
Finally, also of note is the PTO's reexamination of the NTP patents at issue in this case. A final rejection has been issued for one of the patents, and the others are still under nonfinal rejections. (Note that nonfinal rejections are almost always issued. It's SOP for the PTO. Final rejections are more serious, but can also be overcome by the standard appeal procedure to the Board of Patent Appeals.) If the patents are all ultimately rejected, there will be no course. However, I'm thinking that at least a few relevant claims will hold up, continuing this national saga. Should be fun; it's kind of the patent lawyer's "Days of Our Lives". (With the SCO Linux fight being the "Young and the Restless")