Wednesday, January 26, 2005

Toronto Star on Canadian government's amicus brief in blackberry case

The Toronto Star has some great quotes from an NTP brief, describing some amicus filers as "wolves" and "parrots."

Tyler Hamilton of the Toronto Star on the Canadian government's brief (in favor of en banc rehearing) in the NTP v. Rim case:

NTP snapped back in a court filing on January 24, 2005, calling the [Canadian] government's motion an inappropriate and belated attempt to protect a Canadian corporate icon.

"The appearance of a foreign government in the U.S. courts to advocate the narrow economic interests of one of its corporate nationals should, for good reason, be discouraged," according to the NTP filing.

"Otherwise, the U.S. courts would be swamped with filings by foreign governments in support of their largest and most well-connected corporate citizens."

In separate filings, NTP also asked the appeals court to deny similar amicus curiae briefs submitted by the Information Technology Association of Canada, the Canadian Chamber of Commerce and Earthlink Inc., a U.S. Internet service provider and distributor of BlackBerry devices. All three organizations support RIM's request for an appeals court rehearing [before all judges], known as an en banc.

NTP suggested Earthlink, as an ally of RIM, was a "wolf in sheep's clothing" and that the two other organizations were "parrots" that merely repeated RIM's own position.

"If this were a football game, RIM would be called for `piling on' and a 15-yard penalty would be assessed," said the court filings.

Donald Stout, a patent lawyer and co-founder of NTP, called Ottawa's filing "unusual" and "unprecedented" during an interview with the Star. "The Canadian government suggestion that this will hurt Canadian business just doesn't follow."

David Long, legal counsel for RIM, said the federal court, despite NTP's protest, accepted the briefs as filed.

"The federal circuit wanted to hear what those briefs had to say," said Long, adding that it may be two weeks to a month before a decision to rehear the case is made. If a rehearing is not permitted, he said, RIM will appeal to the U.S. Supreme Court.

RIM has refused so far to settle. "When you're dealing in the United States, you can't settle with everybody because it makes you an easy marker," said one legal expert.

Carrie Goodge, a spokesperson for International Trade Canada, said Ottawa didn't get involved earlier in the four-year-old dispute because concerns only surfaced in December and they related directly to the appeals court's interpretation of U.S. patent law. "It's not the first time the government has filed an amicus brief on behalf of a Canadian company," she said.

"Canada is concerned about the potential implications from this decision as it relates to cross-border e-commerce and telecommunications services."

The case has been ongoing since 2001. NTP, a patent holding company based in Virginia, owned patents on wireless email technology developed by recently deceased engineer Thomas Campana Jr.

After sending patent infringement letters to about four-dozen companies, NTP pursued legal action against RIM and was successful in getting a U.S. district court to award $53.7 million (U.S.) in penalties and an 8.6 per cent royalty on every BlackBerry sold in the U.S.

That decision also included an injunction, forbidding RIM from making or selling BlackBerry products on U.S. soil. The injunction has been stayed for now, but more bad news hit in December when the U.S. appeals court supported the findings of the lower court.

RIM, beyond challenging the validity of NTP's patents, has argued that it is not subject to U.S. patent law because a key component of its wireless email system is based in Waterloo.

"In the past, the courts usually said if you're not doing something in the U.S., you're not infringing a patent in the U.S.," said Don Cameron, a patent lawyer with Ogilvy Renault in Toronto. "This court is saying, if you're doing some stuff in the U.S. and some stuff outside the U.S., as far as I'm concerned you're still in the U.S."

Stout said the defence of operating in Canada is flawed because, while a BlackBerry email may pass through Waterloo, it begins and ends in the United States and the devices themselves are sold on U.S. soil and carried by U.S. wireless providers.

Cameron disagreed, pointing out that the U.S. might have a change of heart if China or the European Union started applying the same interpretation to their patent laws.


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