NTP Can't Leave Well Enough Alone Concerning RIM

from the the-money-wasn't-enough? dept

Tue, Aug 19th 2008 9:24am — Mike Masnick

In one of the biggest travesties of the patent system, over two years ago, RIM agreed to pay NTP $612.5 million for patent infringement, even though the USPTO had been rejecting NTP's patents on re-exam. The patents were highly questionable: extremely broad patents covering pretty basic concepts about making email "wireless." Beyond combining two existing ideas in a rather obvious way, there was a fair amount of prior art as well. Yet, under pressure from both the judge and its own shareholders, RIM decided it was worth paying out over half a billion dollars rather than dealing with the potential uncertainty of an injunction forcing it to shut down its service.

You would think that this would have kept NTP happy. After all, NTP was basically built out of the ashes of a company that had failed in the marketplace. It was unable to come up with a product that anyone wanted. RIM, on the other hand, had done the real innovation of figuring out what customers actually wanted, and packaging it in an appealing manner. All that was left at NTP was a bunch of lawyers, who now had $612.5 million for failing in the marketplace.

But NTP won't stop. It's kept suing a bunch of other companies. However, the courts have put its latest lawsuits on hold while the USPTO continues to review the legitimacy of NTP's patents (why RIM wasn't allowed the same consideration has never been explained).

So now NTP is taking another strategy: claiming that RIM unfairly influenced the Patent Office's re-exam of its patents. Yes, the company already won the lawsuit and $612.5 million, but is still claiming that the other side cheated. Of course, there's not much "there" there in the accusations. Basically, RIM had representatives who tried to find out what was happening at the USPTO and what the process was for the re-exam. As various patent attorneys outline towards the end of the article, it doesn't appear that RIM did anything wrong here, but NTP is doing whatever it can to try to bloody RIM, even given the fact that it won the lawsuit. What we're seeing here is a case of extreme rent-seeking, where NTP will do pretty much anything to try to keep milking its highly questionable patents, diverting hundreds of millions away from innovation and into the pockets of folks who failed in the marketplace.

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Filed Under: patents, re-exam, uspto
Companies: ntp, rim

34 Comments

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Anonymous Coward, 19 Aug 2008 @ 10:09am

come on judge, tell those leeches to go get a job.
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PAtent Whore, 19 Aug 2008 @ 10:33am

I'm suing...
I've already patented the idea of going after people for after people for influencing the judge in a patent case.
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MBraedley (profile), 19 Aug 2008 @ 10:40am

Patent Hoarders
It has always been my position that if you can't bring a product to market based on a patent, or have someone license that patent, then you have no right to sue over patent infringement. IMHO, this is what the US patent system was set up to do; give some limited protection to inventor/innovator and allow them to bring a product to market before anyone else. All this encourages innovation as newly introduced products can be further innovated on. When someone hoards patents, the opposite happens, as no new products reach the market, an consequentially, there is less inspiration for further innovation.
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Dosquatch, 19 Aug 2008 @ 10:46am

That means that it's time...
Due to the terms of the RIM/NTP settlement, even if the patents were later rejected, RIM had no recourse on their payment.

If NTP wants to cry "dirty pool", I think it only fair that RIM be awarded libel/slander damages of, I dunno, maybe about $612.5 million. It's only right.
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eleete, 19 Aug 2008 @ 10:54am

Re: That means that it's time...
Your math seems right to me.
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Dosquatch, 19 Aug 2008 @ 11:14am

it also occurs to me
It seems that a lot of the patent litigation would vanish, and with it the benefits of hoarding and trolling (and so the hoarding and trolling themselves) if as little as two simple changes were made to the current system.

1) remove the disincentives to patent research - OK, a little more involved than the glossy title, but still. The current rules against "willful infringement" only make "deliberate ignorance" the rule instead. When your patent attorney's best advice is "pretend the system isn't there," something is dreadfully wrong.

2) compulsory licensing. Come on, say it with me, compulsory licensing. Some oversight body - dare I say, "USPTO-AA" - to broker, collect, and distribute appropriate and automatic license fees. Retroactively, if need be.

2a) "appropriate" license fees should resemble reasonable recompense for the holder's actual investment in the patent held. Meaning, if your entire input into the patent is Words on a Page and a filing fee, Troll, I get to license for a penny a use. Just as a "for instance".

That said, I shall now go impale my eyeballs with lit matches for suggesting that an *AA might be a good idea.
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Anonymous Coward, 19 Aug 2008 @ 1:19pm

Explanation
...(why RIM wasn't allowed the same consideration has never been explained).
A good lawyer knows the law. A great lawyer knows the judge.
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Anonymous Coward, 19 Aug 2008 @ 1:24pm

Re:
come on judge, tell those leeches to go get a job.

They're lawyers. Leeching is their job.
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Anonymous Coward, 19 Aug 2008 @ 1:30pm

Re: Patent Hoarders
It has always been my position that if you can't bring a product to market based on a patent, or have someone license that patent, then you have no right to sue over patent infringement.
Why would anyone license a patent if they couldn't be sued for infringement otherwise?
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Anonymous Coward, 19 Aug 2008 @ 1:44pm

Re: it also occurs to me
It seems that a lot of the patent litigation would vanish, and with it the benefits of hoarding and trolling (and so the hoarding and trolling themselves) if as little as two simple changes were made to the current system.
It seems that a lot of the patent litigation would vanish, and with it the benefits of hoarding and trolling (and so the hoarding and trolling themselves) if the patent system was abolished.
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Dosquatch, 19 Aug 2008 @ 2:21pm

Re: it also occurs to me
...if the patent system was abolished.

Or that, but my flying bathtub stands a better chance of getting off the ground than your flying bathtub.
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Anonymous Coward, 19 Aug 2008 @ 2:45pm

NTP has every right to question what has been happening at the USPTO regarding the reexaminations of its patents. It is rare that a reexamination is commenced solely at the direction of the USPTO Commissioner, and even rarer that a third party reexamination requester in an ex parte reexamination is provided high level access to senior Department of Commerce officials.

Likewise, it is rare for a patentee to appeal a reexamination decision to the USPTO BPAI and not have the appeal even assigned a docket number.
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Vincent Clement, 19 Aug 2008 @ 4:23pm

Re: Explanation
RIM > Big and rich evil foreign company

NTP > Small and poor American company

Gee, I wonder which way the judge in Marshall, Texas would have ruled?
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Anonymous Coward, 19 Aug 2008 @ 5:37pm

Re: it also occurs to me
compulsory licensing

This is a horrible idea.
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Dosquatch, 19 Aug 2008 @ 9:12pm

Re: it also occurs to me
[compulsory licensing] is a horrible idea.

Says you with no expansion on the thought. Compulsory licensing means I can go forth and manufacture, or innovate, or whatever it is that I'm doing, and you the holder get paid.

Of what benefit is it to anybody for you to prohibit my use of "it"? I'm stuck trying to work around you instead of doing something useful, you're not getting paid.

All compulsory licensing means is that you can't cock-block.
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Anonymous Coward, 19 Aug 2008 @ 9:52pm

Re: Re: it also occurs to me
Perish the thought that anyone should ever have to engage in their own independent creativity to craft an alternate approach that avoids the claims of a patent and presents a second solution. Why would we as a society even need/want two competing solutions Isn't just one more than enough?
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Mike (profile), 19 Aug 2008 @ 10:17pm

Re: Re: Re: it also occurs to me
Why would we as a society even need/want two competing solutions Isn't just one more than enough?

Says someone who is apparently entirely unfamiliar with free market economics or the economics of growth and innovation.

The Soviet Union thought that you just need one of things, and that resulted in a totally stagnated economy. Who knew that was the type of "progress" you thought was worth promoting.
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Ronald J Riley (profile), 20 Aug 2008 @ 5:49am

Mike, one of the big problems with your writings is that you constantly lie by omission. This post is a perfect example of this.

RIM has spent a huge amount of money on public relations trying to paint their loss as a miscarriage of justice but it is a fact that it was not.

Have you considered why their case went all the way to the Supreme Court and they found NO SYMPATHY?

Could it be that they had unclean hands?

Do you think that their attempts to abuse the process of law had anything to do with their fate?

Is it possible that being caught red handed foisting manufactured evidence on the court may have something to do with how their case turned out?

Could their extensive and well documented efforts to politically influence the court have backfired?

And yes, there is a great deal of information concerning their interaction with the USPTO, including allegations backed up by many sources that certain high level USPTO political hacks were very cozy with RIM.

Your and the rest of the patent pirating crowd you seem to emphasize with constantly scream about the patent system being broken. But it is not broken. The RIM case is a perfect example of justice.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in thread ]
Dosquatch, 20 Aug 2008 @ 7:16am

Re: it also occurs to me
I think you missed the sarcasm in AC's response to me - he's saying that the current system forces diversity of design and blah blah blah.

The problem is that he's reading where I wrote "compulsory licensing" and thinking I mean that I, the inventor, must use he the patent holder's idea. He's wrong, that's not what I'm saying. I, the inventor, am still free to invent my way around paying a license to him. Diversity lives!

When I say "compulsory" (AC, I'm looking at you), I mean that if I wish to use his patented idea or mechanism, HE the patent holder is compelled to license to me even if he would rather not. That is, he shouldn't be allowed to hold MY creative work hostage from market by refusing to license his patent to me.
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Andrew D. Todd, 20 Aug 2008 @ 7:31am

Moot in the Light of KSR v. Teleflex
The NTP v. RIM case is an "old law" case, predating KSR v. Teleflex. KSR v. Teleflex radically changed the rules. Putting together a large software system-- say, a web browser or a word processor-- is rather like ordering a meal for half a dozen people at a Chinese restaurant. You establish a data framework-- call it your rice-- and add in assortments of little utilities-- lobster this, and tofu that, and chicken the other thing-- and distribute the combined package. As such, the kinds of patents which reach software systems are likely to be more than usually vulnerable to KSR v. Teleflex obviousness challenges.

So it doesn't really matter whether the Patent Office was right in its earlier rejection of NTP's patents. If you look at a Blackberry or an Iphone, or whatever, the way an engineer does, by breaking it down into its layers, separating specifications from implementations, etc., there is nothing much there which is strikingly original. In the last analysis, E-mail is just a form of telegram, and for telegrams, in the largest sense of the word, you go back to the eighteenth century. The identifiable originality in one of these new gizmoes is almost all in the chip etching process which can put a billion transistors on a chip at a modest price.
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stv, 20 Aug 2008 @ 7:41am

stop the shilling!!!
the reason why there was no stay is because the trial was already underway. It is at the discretion of the court and in this instance perhaps the judge felt it would be a miscarriage of justice to make the patentee wait any longer. Note that the PTO takes on average over 5 years for final resolution of a reexam. Justice delayed is justice denied. The jury ruled and eventually a settlement was made. Don’t like impartial juries (neither do corporate thieves)? Try the Congo. You are such a shill. Bon voyage.
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stv, 20 Aug 2008 @ 7:42am

stop the shilling!!!
the reason why there was no stay is because the trial was already underway as I understand it. It is at the discretion of the court and in this instance perhaps the judge felt it would be a miscarriage of justice to make the patentee wait any longer. Note that the PTO takes on average over 5 years for final resolution of a reexam. Justice delayed is justice denied. The jury ruled and eventually a settlement was made. Don’t like impartial juries (neither do corporate thieves)? Try the Congo. You are such a shill. Bon voyage.
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MLS, 20 Aug 2008 @ 7:55am

Re: Re: it also occurs to me
"I'm stuck trying to work around you instead of doing something useful..."

It seems to me that by crafting a work around you are doing something useful.
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Dosquatch, 20 Aug 2008 @ 8:03am

Re: it also occurs to me
It's a process called "reinventing the wheel", and it is not necessarily useful. It can be, at times, if a better way to a solution can be found, but taking the mountain pass trying to avoid the troll under the bridge is often wasted effort... especially when the troll comes at you anyway.
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Damien, 20 Aug 2008 @ 8:44am

Re: stop the shilling!!!
So over a half a billion dollars in unjustly transfered capital is a fair price for a trail over what was, ultimately, deemed an invalid patent? Sorry, but that doesn't sound like justice to me.

No, more like a conman trying to fleece his mark before the cops can reach him. The basis for this lawsuit was the bloody patent. If its validity was in question that's the perfect reason to put a trial on hold, whether it's already started or not.
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Nasch, 20 Aug 2008 @ 9:44am

Unpleasant turn of phrase
Mike, if you could avoid the phrase "bloody RIM" in the future, I would really appreciate it. Thanks. ;-)
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Ronald J Riley (profile), 20 Aug 2008 @ 9:50am

Re: Re: Re: it also occurs to me
""I'm stuck trying to work around you instead of doing something useful...""

"It seems to me that by crafting a work around you are doing something useful"

I think what Dosquatch was saying is that they are not capable of coming up with an equally effective or god forbid a better solution.

This is the case with most programmers. They know how to write code but simply lack the inventive spark. Egos being what they are they simply cannot admit to themselves that they are on the wrong slope of the bell curve.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in thread ]
Ronald J Riley (profile), 20 Aug 2008 @ 10:01am

Re: RIM Management Idiots
The Judge did send a clear mesage to RIM about how to conduct themselves.

By the way, all those patents are valid today and that is going to be the case until all the appeals are heard. It is not likely that RIM will succeed in knocking out every claim of every patent. They knew this and that is why they settled.

RIM reminds me of Microsoft, in that they continue to be pretty belligerent with their betters, namely the inventors who produce the inventions they need to continue to prosper in their market. I predict that RIM will continue to pick fights with patent holders until they get hosed really bad on a case.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in thread ]
Mike (profile), 20 Aug 2008 @ 10:59am

Re:
Mike, one of the big problems with your writings is that you constantly lie by omission. This post is a perfect example of this.

If that were so, you would be free to fill in the blanks. I have repeatedly asked you to back up your statements. To date, you have failed to do so. I wonder why.

RIM has spent a huge amount of money on public relations trying to paint their loss as a miscarriage of justice but it is a fact that it was not.

You saying so does not make it so. I think most people, looking at the details, can judge for themselves.

Have you considered why their case went all the way to the Supreme Court and they found NO SYMPATHY?

Not quite. The part that went to the Supreme Court was quite narrowly focused. But who misleads by omission again? And that was prior to the USPTO finding the patents invalid.

Could it be that they had unclean hands?

No, because that was not the point of the issue before the Supreme Court.

Or are you throwing around more accusations without proof?

Is it possible that being caught red handed foisting manufactured evidence on the court may have something to do with how their case turned out?

While incredibly stupid on RIM's part, that has no bearing on whether or not the patents were invalid.

And yes, there is a great deal of information concerning their interaction with the USPTO, including allegations backed up by many sources that certain high level USPTO political hacks were very cozy with RIM.

Wait... and I thought you were a big fan of the UPSTO? I thought it could do no wrong?
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Mike (profile), 20 Aug 2008 @ 11:01am

Re: stop the shilling!!!
the reason why there was no stay is because the trial was already underway. It is at the discretion of the court and in this instance perhaps the judge felt it would be a miscarriage of justice to make the patentee wait any longer. Note that the PTO takes on average over 5 years for final resolution of a reexam. Justice delayed is justice denied.

You seem to have missed the fact that the PTO had notified the court that it was very close to being done with its re-exam.

But why let facts get in the way?
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Dosquatch, 20 Aug 2008 @ 11:05am

Re: RIM Management Idiots
they continue to be pretty belligerent with their betters, namely the inventors who produce the inventions they need to continue to prosper in their market.

NTP invented nothing. They inherited the patents from the shattered remains of a company that could not produce a viable product based on a "patented idea" that is just SOAKED in prior art and obviousness and should never have been granted.

This you call RIM's "better"?

You, sir, are a troll. A shiny, well polished troll, probably a troll in a very nice suit, but a troll nonetheless.
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Dosquatch, 20 Aug 2008 @ 11:17am

Re: it also occurs to me
I think what Dosquatch was saying is that they are not capable of coming up with an equally effective or god forbid a better solution.

Not exactly. What I'm saying is that when some yonk hairbrain manages to get a broad umbrella patent for something blitheringly obvious, and then tries to hold the world hostage for untold wealth and power, it often makes constructing rube goldberg-esque abstractions and constructs less painful than trying to talk the nitwit out of his tree so you can go the direct route.

You seem to be of the mind that said yonk hairbrain is evidence that the patent system is happy and healthy.

I - ah - somewhat disagree.
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Anonymous Coward, 20 Aug 2008 @ 11:50am

Re: Re: RIM Management Idiots
NTP should be thanking RIM. If RIM hadn't brought NTP's ideas to the marketplace (allegedly), the NTP wouldn't be $612.5 million richer.

RIM to NTP..."You're Welcome."
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John, 20 Aug 2008 @ 10:03pm

I agree with Vincent Clement
I agree with Vincent Clement. The US has a history of being self-protective from outside (foreign) companies. It is actually (arguably) an admirable thing for the public to do, in buying locally made items in preference to imports. But there are limits........
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