Friday, December 09, 2005

FRIDAY SHORTS: Rumors are flying furiously that RIM is in serious settlement negotiations with NTP. Investors and users alike have been howling for RIM to settle the lawsuit. Market research firm Gartner has even gone so far as to advise clients this week to put BlackBerry deployments on hold until the patent dispute is resolved.

Will they settle? Very likely. However, there is a major sticking point concerning the reexamination of NTP's patents in the USPTO. The latest round of rejections suggest that NTP is in a tight spot and may be facing a potential invalidation of their patents. Certainly this is what RIM is counting on. But it will take at least another 6-8 months before we get a firm grasp on the USPTO's rejections (if they are indeed forthcoming). If that happens, NTP will appeal to the BPAI, and possibly to the Federal Circuit (and even the Supreme Court). Even under a worst-case scenario for NTP, it will take at least 1-2 years to resolve these matters. And unfortunately for RIM, this is time that the district court said it is not willing to wait for.

What then, does NTP want? Money. Lots of it, and right away. It is in NTP's interest to exact as much money up-front to protect itself against a possible invalidation in the USPTO. Should RIM even manage to structure a $100mil a year settlement (say, for 6-10 years), it is possible that, after 3 years, the patents may be invalidated. And if that happens, RIM can stop writing checks to NTP and save a few hundred million over the long haul (talk about your pyrrhic victory).

Creative has spoken: "We will pursue all manufacturers that use the same navigation system."

It appears that Creative Technology has been generating more publicity over its music-interface patent, when the company took another stab recently at threatening Apple's iPod. Taking the quiet approach, Apple has so far refused comment.

The press is having conniptions trying decipher the "will-they-or-won't-they" innuendos being generated by Creative. They've certainly shown a lot of moxie in openly making such statements.

But will they? My gut tells me no. An important fact that doesn't seem to get reported is that Apple has a patent portfolio that is almost 5 times bigger than the portfolio that Creative Technology has. While many of Apple's patents have nothing to do with digital music players, I would venture to guess that there are plenty of computer/software patents that could be "re-packaged" to nab a few of Creative's products. After only a 30-second search, it appears that Apple has at least 10 patents of their own that deal with music interfaces. Countersuit? You bet.

In the meantime, Creative has launched their new Zen Vision M media player. Parlaying this release with the threat of cutting off Apple with their patent (think "RIM"), and you have a recipe for 5-star publicity that you can't buy on Madison Avenue.

2 Comentários:

Anonymous said...

In the midst of charges and counter-charges in the RIM/BlackBerry case, the central issue may become lost. RIM is a foreign multinational corporation found by the courts to have expropriated American inventions for their own gain. Foreign company theft of American innovation is widespread. This is a serious, on-going threat to America's economic and national security and the RIM/BlackBerry case is a clear example.
Americans are calling for justice, starting with an injunction against RIM and a phased replacement of BlackBerry with Palm or alternative U.S.-invented devices.
As a matter of equitable public policy, it is time for all branches of American government and law enforcement to get rid of their BlackBerrys and replace them with an American product and service such as the Palm and the NTP licensed "Good Technologies" service which does the same tasks as the BlackBerry.
It is increasingly difficult for smaller inventors and patent holders to counter the marketing and legal strategies of bigger businesses, especially those financed by outside interests. And again, the RIM/BlackBerry case perfectly illustrates this practice. It is almost impossible to believe that a large, well-financed company like RIM failed to research all prior art in the patent system before bringing the BlackBerry to market.
The courts found that RIM squatted on another's property and when they were caught, this large multinational corporation could have negotiated reasonable compensation to lease the use of the property. But RIM took the low road. RIM mobilized a massive legal, PR and lobbying effort to paint the victims as abusers: RIM attempted to gain the upper hand against NTP while promoting the argument that the original patent holder, and smaller company, really asked for it. After all, NTP's technology was very desirable.
The argument is compelling. Every time an American patent protects a desirable innovation, it is bad policy and poor economics to stand by and allow larger multi-nationals to infringe on that patent and then steamroll the smaller company with a media and legal blitz that the smaller company is unable to counter.
In this instance, RIM has abused patent re-examination to try and break NTP. Not on the merits, but break them with punitive costs associated with the new adversarial reexamination procedures which at this point is something on the order of thirty separate re-examination requests.
There are many aspects to this particular case which can be explored and debated.
The facts in this case have become muddied with charges and counter charges and misleading reports, but fairness demands that the media, the public and government agencies honor the intent of the patent system to protect American inventors and innovation.

Jackson Lenford said...

I've posted the following at Right to Create:

Peter Zura is betting that they won't go after Apple's iPod, because Apple's patent portfolio is 5 times larger than Creative's. If Creative were to go after Apple, Apple could use their portfolio defensively in a counter-attack against any number of Creative devices, products, and technologies. But what about smaller companies that aren't as well endowed with patents? What about the startup with an absolutely phenomenal new way of listening to music that gets shut down by Creative? What about small inventors?

This is an excellent example of how our patent system works to benefit large corporations and disadvantages the independent inventor and small business. Only those with huge patent arsenals are allowed to play this game, and if you've only got a couple of handguns and rifles, well, good luck. You probably aren't any match for your opponent who has uranium-depleted armor-piercing automatic machine guns.

BTW, the above poster ("In the midst...") seems to be spam -- I had the identical text posted to 3 distinct articles at Right to Create (deleted 2, responded to 1), and I've seen it on other blogs today as well. I'm not sure who is spewing it, but they sure dislike RIM....

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