**NTP PATENTS TO BE INVALIDATED BY THE USPTO** - In one of the most bizarre twists yet, the New York Times is reporting that the USPTO has taken the highly unusual step of personally contacting each side to inform them that NTP's patents will be invalidated. According to NTP, they have acknowledged the communication, and appear to all-but-concede that the USPTO's next step will be a final rejection.
This blog previously recognized NTP's perilous position, however it was not expected that the USPTO would take such a hard line against them.
This action follows the USPTO's other unusual step of giving NTP only one month to respond to the USPTO's rejection. Under MPEP 2263, the USPTO sets a statutory 2-month time limit for responding to rejections, unless there is a court order or a stay of litigation - neither of which exists in the present case (see Patent Prospector's excellent post on this here). These issues were argued to the USPTO by NTP (see NTP's "Reexam Request for Extension of Time" dated 12-05-2005 here). However, the USPTO dismissed the arguments, citing 37 C.F.R. 1.550(b) as authority for the USPTO to give NTP only 30 days (see USPTO denial dated 12-14-2005 here).
The USPTO has undoubtedly taken a more active position in bringing the RIM/NTP matter to a close. If NTP's patents are ultimately invalidated, this would be a monstrous showing by the USPTO that reexaminations are indeed viable alternatives (or supplements) to litigation.
Stay tuned.
Wednesday, December 21, 2005
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The USPTO does seem to be taking an unusually heavy stand against NTP. I don't see how this can lead to a final invalidation of the patents for quite some time, however.
Doesn't NTP have years and years of appeals process ahead of them? (e.g. BPAI, Fed Circuit, US Supreme)
Absolutely correct. Even if the Examiner invalidates the claims, NTP can then appeal to the BPAI, Fed Circuit and even the Supreme Court. This will utimately take a number of years to settle.
And this has set the drama for the RIM case: since the district court judge is pushing forward with the case (i.e., not waiting for a final decision on the reexam proceeding), how does RIM structure a settlement with NTP, knowing that the patents are likely to be invalidated?
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