Put Away Your Bibles and Methadone

thumbs.jpgWeary thumbs all over Los Angeles and the nation are going to have to suck it up and keep tapping out messages on those little blue blinking devices for the indefinite future. But their owners are breathing a sigh of relief that they won’t have to take the BlackBerry cure just yet. A federal judge this morning chose not to order an immediate shutdown of the BlackBerry portable e-mail system. You can keep sending messages — for now. The judge, James Spencer, didn’t sound very impressed by the Research In Motion argument (joined by the U.S. government) that a national crisis would ensue if he ordered the injunction the patent owner NTP sought:

“I am surprised, absolutely surprised, that you have left this incredibly important decision to the courts. I’ve always thought this was a business decision,” the federal district court judge said.

Earlier in a packed courtroom, NTP described the Canadian makers of the BlackBerry as “squatters” who need to pay for using NTP’s patented technology in the popular wireless e-mail devices.

Lawyers for NTP argued that RIM should pay at least $126 million US in damages for plus $250 million US in royalties on BlackBerry sales that have been collecting in an escrow account.

Spencer also heard from lawyers representing RIM and the U.S. government, which is concerned that the five-year-old patent dispute blackberry.jpgcould affect national security by disrupting a critical communications service.


Although Spencer didn’t formally address RIM’s software “workaround” solution, he did say it didn’t make sense that Research In Motion could argue both that an injunction against the BlackBerry would provoke a national crisis and also that RIM had a technical fix that would the problem completely.

I admit it — I’m having too much fun with this issue, largely because I am no longer a BlackBerry user. But if you told me I couldn’t bring my laptop into Starbucks, where I am right now, and couldn’t connect to the Internet wirelessly while I sip capuccino and eat a Rio Citrus Salad, I would be upset. My writing, research, blogging, and e-mail might not represent a national security matter, but I think it’s important, and that’s all that counts.

But it’s hard not to laugh at the absurdity of the case itself. The judge and I have the same question: How could a profitable company like Research In Motion, and an alleged “patent troll” like NTP–which has never produced a single product but stands to make an enormous payday no matter what but seems to be holding out for more, more, more–not have reached a settlement a long time ago?

For enlightenment on this issue, I recommend this article from Knowledge @Wharton, The Wharton profs and experts come to no consensus, but do suggest the U.S. patent system has a little catching up to do.

While there are many moving parts in this five-year patent battle, the basic conflict is over NTP’s contention that RIM’s use of a wireless messaging network to deliver email infringes on patents that NTP owns. But the dispute raises other, more far-reaching questions, such as: Should Research In Motion have to pay a percentage of its sales to NTP, which may not have commercialized its patent anyway? Why has the battle gone on this long? Could RIM be shut down over a patent dispute even while the U.S. Patent and Trademark Office (USPTO) is re-evaluating several of the disputed patents? (Indeed, according to several news reports, the USPTO has already indicated that it eventually intends to reject all of NTP’s claims.) And finally, can the U.S. patent system, which in 1977 permitted a patent for a “comb over” — technically a “method of styling hair to cover partial baldness using only the hair on a person’s head” — keep up with technological innovation and a flood of patent requests? Does the patent system itself need a do-over?

“That’s the central question,” says Wharton professor Eric Clemons. “The balance is between encouraging innovators and benefiting society. This debate has been around for hundreds of years, and it ebbs and flows. Ben Franklin opposed patents in any form, and obviously he was wrong. Innovation is encouraged if innovators are rewarded. But when patents are too easy to get, mini-innovations can either shut down real services or command enormous payments for, in essence, doing nothing.”


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