| Technology patents stifle innovation. You may have | | | | products that have taken years to develop and |
| heard this, and the arguments surrounding it, since the | | | | research, such as drugs. However, when talking about |
| first software patents were issued. Until now, | | | | fundamental building blocks common to MANY items |
| however, the average individual in the United States | | | | that are powered by computer software, waiting 17 |
| has not noticed really noticed the reach that intellectual | | | | years may as well kill any hopes of development or |
| property law protection has in their everyday lives. | | | | innovation in any fields even remotely touched by the |
| After all, one does not miss innovation that has been | | | | patents. |
| crushed prior to the product's shipment into the supply | | | | Looking at this from a business perspective, back |
| chain. The "wouldn't it be nice if we had something like | | | | when I was in law school, I was told that a |
| this" thought doesn't normally result in a search for that | | | | conservative estimate of expense that one could |
| item just to find that someone tried to develop it but | | | | expect to incur from a patent lawsuit would be around |
| was stopped either by being threatened with the high | | | | $125,000.00. Part of the reason for this is because of |
| cost of patent infringement, threats of never ending | | | | the scarcity of patent attorneys, the difficulty of finding |
| lawsuits based on copyright or other claims, or even | | | | expert witnesses (who are generally quite expensive), |
| threats of federal legislation that will leave their product | | | | and the necessity to get technologically competent |
| useless. | | | | judges. In any case, when threatened with |
| Today, however, rather than squelching potential | | | | approximately $125,000.00 in legal fees, most small |
| technology, patent law may be used to prohibit the use | | | | firms (where much of the technology innovation |
| of technology that already exists and is in use by | | | | comes from these days) will be loathe to roll the dice |
| people around the world - the Blackberry. Given what's | | | | on an untested possible product. A mere threat might |
| at stake, the publicity truly can't hurt, and will likely assist | | | | be enough, regardless of whether the small company |
| the fans of innovation in their proverbial fight to create | | | | feels that the suit would be won because the product |
| while steering clear of intellectual property restrictions. | | | | is not using protected technology. Of course, this |
| The more people who know what is happening, the | | | | means that the consumer will be denied the |
| more most will clamor for change in intellectual | | | | opportunity to choose these products, as they will |
| property law. | | | | never reach the marketplace. |
| It is already rather dangerous for BlackBerry users. A | | | | In the case of RIM vs. NTP, the stakes are even |
| company called NTP is asking for the court to enforce | | | | higher, as the Blackberry is a major staple of |
| an injunction which would prohibit the sale of | | | | international business. NTP has claimed that the |
| BlackBerries in the United States, and would also shut | | | | Blackberry infringes on 8 of its patents, five of which |
| down email to all users except for US government | | | | are currently being re-examined by the US Patent and |
| account holders. Ironically, this would mean that the US | | | | Trademark Office for validity. The USPTO may rule |
| Patent and Trademark Office and the federal judges | | | | that the patents are valid and enforceable, or they |
| hearing this case would continue to have email access | | | | may rule that these patents are invalid, making it |
| while ruling on whether that privilege would be granted | | | | possible for RIM to likely continue with making and |
| to the rest of us mere mortals. Since a three judge | | | | selling the Blackberry, and businesspeople everywhere |
| panel of the US Court of Appeals for the Federal | | | | will breathe a sigh of relief. |
| Circuit in Washington already ruled that RIM, makers of | | | | What is most interesting in this case is that NTP is not |
| the BlackBerry, was in violation of seven of NTP's | | | | an innovator at all, and is not defending its own hard |
| patents, things don't look very good for BlackBerry | | | | developed technology in which it has invested great |
| users at this point, especially if the USPTO upholds the | | | | deals of money, time and engineering know how. |
| validity of the patents in question. | | | | Instead, NTP is a company that buys wireless e-mail |
| The story is a typical one - a software patent on | | | | related patents. Five of the patents in question have to |
| technology already in use but packaged in a way that | | | | do with what we normally do every day when we |
| the US Patent and Trademark Office didn't recognize | | | | send and receive electronic mail, the only difference is |
| as "prior art," held by a company whose sole job is to | | | | that these activities are completed "over RF." RF, or |
| collect such patents and use them as clubs against | | | | radio frequency, is used in Treos, in Airports and other |
| any company who creates something using | | | | wireless routers and hubs, AND over ethernet, |
| technology that the patent was wrongly granted to | | | | although the RF in that case is contained within the |
| protect. This story happens over and over in a typical | | | | cable itself. If the patents are somehow held as valid, |
| year in the United States, but rarely has it been taken | | | | ALL email communications would be at risk for patent |
| this far, regarding a product this popular. | | | | infringement, and we could all find ourselves shut down. |
| Patent law, and other intellectual property law was | | | | This, of course, would catch the attention of quite a |
| created in order to foster innovation and production of | | | | number of email using individuals around the world. |
| products in the United States. By granting a limited time | | | | The next move is anyone's guess. Will NTP then |
| monopoly on technology used to produce certain | | | | decide to pursue action against all users who send or |
| products or services, the public received the right to | | | | receive email over RF? Will enough high powered |
| use the technology uninhibited once the patent term | | | | business people become angry enough that they |
| (usually 17 years from the patent's issue date) has run | | | | demand patent reform? Or will things just continue as |
| out. In the days before computers and software | | | | they are for the next seven years until the NTP |
| applications, 17 years may have been a fine period of | | | | patents expire? Only time will tell. |
| time. It may still be a fair time period for certain | | | | |