Thursday, April 06, 2006

RIM compares patent judge to "a judge in a murder case pondering execution while ignoring DNA evidence that exonerates the accused."

In a rather caustic remark, RIM's Balsillie quoted Newsweek to Lamar Smith's subcommittee on April 5, 2006, comparing RIM's treatment by the district court (ED Va) with "a judge in a murder case pondering execution while ignoring DNA evidence that exonerates the accused." [from the Globe and Mail]

The Globe and Mail also stated:

He [Balsillie] also took a swipe at the judge in its case, U.S. District Court Judge James Spencer, complaining that he completely ignored later findings by the patent office that the disputed patents were largely bogus.

"The judge's comments during the proceedings emphatically suggested that he viewed the [patent office's] final actions as irrelevant to his decision," Mr. Balsillie told the committee.


Representatives Howard Berman, a California Democrat, and Rick Boucher, a Virginia Democrat, introduced a scaled down bill yesterday that they said would address some of the worst abuses. The proposal would give judges more discretion to deny the request of patent owners to halt sales of infringing products and include some changes sought by the patent office.

**The Globe and Mail article did not mention Jon Dudas or Mark Lemley. One notes that a re-examination at the USPTO is not completed until all appeals are exhausted. At the time of the settlement, the court had not issued an injunction, but likely would have; the USPTO had issued final Office Actions, but response had not been made. NTP could have appealed to the BPAI and then to the CAFC. The NTP/RIM case is different from Eolas (who withstood re-examination without claim amendment) and from eBay/MercExchange (wherein eBay filed a re-exam, after losing at district court, but using the SAME art as argued at district court.) All of the defendants (RIM, eBay, Microsoft (the Eolas re-exam was director initiated)) could have filed re-exams earlier than they did.

Previous post on IPBiz.

On the Newsweek article:

In this week's issue Newsweek has an excellent piece on the recent settlement between Research In Motion and NTP. In the article Steven Levy makes a case for major issues with the US Patent System. It also confirms that the agreement RIM was forced to make does not include a payback clause if the USPTO completely absolves NTP's patents.

Will NTP have to refund any of the payment if its appeals fail, and its key patents are gone? No. "NTP wouldn't do that because the money would come right back to us," says Balsillie. "The chance that those patents will survive are zero." The lesson? "There's an urgent need for patent reform. We don't feel good about this."


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