USPTO Grants Another Stupid Software Patent - Hand In Your Blackberry At the Door

Technology patents stifle innovation. You may have heard this, and the arguments surrounding it, since the first software patents were issued. Until now, however, the average individual in the United States has not noticed really noticed the reach that intellectual property law protection has in their everyday lives. After all, one does not miss innovation that has been crushed prior to the product's shipment into the supply chain. The "wouldn't it be nice if we had something like this" thought doesn't normally result in a search for that item just to find that someone tried to develop it but was stopped either by being threatened with the high cost of patent infringement, threats of never ending lawsuits based on copyright or other claims, or even threats of federal legislation that will leave their product useless.

Today, however, rather than squelching potential technology, patent law may be used to prohibit the use of technology that already exists and is in use by people around the world - the Blackberry. Given what's at stake, the publicity truly can't hurt, and will likely assist the fans of innovation in their proverbial fight to create while steering clear of intellectual property restrictions. The more people who know what is happening, the more most will clamor for change in intellectual property law.

It is already rather dangerous for BlackBerry users. A company called NTP is asking for the court to enforce an injunction which would prohibit the sale of BlackBerries in the United States, and would also shut down email to all users except for US government account holders. Ironically, this would mean that the US Patent and Trademark Office and the federal judges hearing this case would continue to have email access while ruling on whether that privilege would be granted to the rest of us mere mortals. Since a three judge panel of the US Court of Appeals for the Federal Circuit in Washington already ruled that RIM, makers of the BlackBerry, was in violation of seven of NTP's patents, things don't look very good for BlackBerry users at this point, especially if the USPTO upholds the validity of the patents in question.

The story is a typical one - a software patent on technology already in use but packaged in a way that the US Patent and Trademark Office didn't recognize as "prior art," held by a company whose sole job is to collect such patents and use them as clubs against any company who creates something using technology that the patent was wrongly granted to protect. This story happens over and over in a typical year in the United States, but rarely has it been taken this far, regarding a product this popular.

Patent law, and other intellectual property law was created in order to foster innovation and production of products in the United States. By granting a limited time monopoly on technology used to produce certain products or services, the public received the right to use the technology uninhibited once the patent term (usually 17 years from the patent's issue date) has run out. In the days before computers and software applications, 17 years may have been a fine period of time. It may still be a fair time period for certain products that have taken years to develop and research, such as drugs. However, when talking about fundamental building blocks common to MANY items that are powered by computer software, waiting 17 years may as well kill any hopes of development or innovation in any fields even remotely touched by the patents.

Looking at this from a business perspective, back when I was in law school, I was told that a conservative estimate of expense that one could expect to incur from a patent lawsuit would be around $125,000.00. Part of the reason for this is because of the scarcity of patent attorneys, the difficulty of finding expert witnesses (who are generally quite expensive), and the necessity to get technologically competent judges. In any case, when threatened with approximately $125,000.00 in legal fees, most small firms (where much of the technology innovation comes from these days) will be loathe to roll the dice on an untested possible product. A mere threat might be enough, regardless of whether the small company feels that the suit would be won because the product is not using protected technology. Of course, this means that the consumer will be denied the opportunity to choose these products, as they will never reach the marketplace.

In the case of RIM vs. NTP, the stakes are even higher, as the Blackberry is a major staple of international business. NTP has claimed that the Blackberry infringes on 8 of its patents, five of which are currently being re-examined by the US Patent and Trademark Office for validity. The USPTO may rule that the patents are valid and enforceable, or they may rule that these patents are invalid, making it possible for RIM to likely continue with making and selling the Blackberry, and businesspeople everywhere will breathe a sigh of relief.

What is most interesting in this case is that NTP is not an innovator at all, and is not defending its own hard developed technology in which it has invested great deals of money, time and engineering know how. Instead, NTP is a company that buys wireless e-mail related patents. Five of the patents in question have to do with what we normally do every day when we send and receive electronic mail, the only difference is that these activities are completed "over RF." RF, or radio frequency, is used in Treos, in Airports and other wireless routers and hubs, AND over ethernet, although the RF in that case is contained within the cable itself. If the patents are somehow held as valid, ALL email communications would be at risk for patent infringement, and we could all find ourselves shut down. This, of course, would catch the attention of quite a number of email using individuals around the world.

The next move is anyone's guess. Will NTP then decide to pursue action against all users who send or receive email over RF? Will enough high powered business people become angry enough that they demand patent reform? Or will things just continue as they are for the next seven years until the NTP patents expire? Only time will tell.

Mikki Barry is an intellectual property attorney in Great Falls, Virginia. She has been commenting on Internet legal issues and policies since 1984. To contact Mikki, please visit http://www.mikkibarry.com

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