Thursday, April 14, 2005

BUYER'S REMORSE FOR RIM? Research In Motion, maker of the ubiquitous BlackBerry, last month paid $450 million to settle a furious legal battle over five patents held by NTP. The markets welcomed RIM's decision to settle, boosting its stock 8% overnight, to $64.85. But now, journalists are wondering if RIM might soon regret that it ever made a deal in the first place.

As reported previously, the U.S. Patent & Trademark Office rejected one of the five patents NTP had accused RIM of infringing and gave a strong indication that the other disputed four might soon be rejected upon reexamination as well. The agency has been taking a second look at more than 2,000 claims made on a total of eight NTP patents, including the five that RIM allegedly infringed, ever since Arlington (Va).-based concern sued RIM in December, 2002. After more than two years, the officials have rejected all 523 claims NTP made on three of those patents.

Now, I understand that reexamination is taken one step at a time, and that current statistics regarding USPTO reexamination favors NTP emerging from the reexamination with a valid (although potentially narrowed) patent. But what if the reexam vitiates common and potentially infringing features from the claims? Surely that is on the mind of anyone that follows cases like this.

To date, there have not been any high-profile cases where reexamination has carried the day for the defendant. But I maintain that reexamination procedure is a powerful weapon for anyone accused of infringement to deploy. And once defendants start beating down some of the weaker patents out there, I see no reason why reexamination (yes, even inter-partes) shouldn't become the weapon of choice.

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