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Optical/IP

Judge to Blackberry Users: Drop Dead

5:20 PM -- I've never been in Judge James R. Spencer's courtroom, and I hope I never will be.

Don't get me wrong: Judge Spencer is a distinguished jurist, a cum laude graduate of Harvard, first in his class at Howard University's divinity school, and the first African-American judge on the U.S. District Court for the Eastern District of Virginia. He worked in the civil rights movement in the late 1960s, and I have no doubt that his principles match his brilliance.

But Judge Spencer has got it wrong in the BlackBerry case. I'm not talking about the merits of NTP's patent infringement suit; I'm talking about Spencer's stubborn refusal to take into account the U.S. Patent and Trademark Office's moves to invalidate NTP's patents. This week the Patent Office issued a preliminary ruling that struck down the fifth and final patent at issue in the NTP-RIM lawsuit. NTP will appeal that ruling; a final decision could come in the next 60 days -- or it could take years. (See Final NTP Patent Struck Down.)

Judge Spencer won't wait. He's repeatedly made it clear he has no intention of letting the slow grinding of the Patent Office's machinery affect his ruling re: RIM. "Frankly, it's highly unlikely that I'm going to stay these proceedings," Spencer said from the bench back in November. "I don't run [the Patent Office's] business and they don't run mine."

Well, nobody's trying to restrict your judicial independence, Judge Spencer, but the outcome of the RIM case is not just "your business" -- it's the business of millions of Blackberry users, too, who use the devices every day to keep the wheels of American commerce spinning. RIM may very well have based its business on second-hand technology; it certainly wouldn't be the first successful tech company to do so. But if the Patent Office strikes down NTP's patents, as appears likely, there's no case here. Maybe it's worth waiting a while longer to find that out.

If Judge Spencer's impatience prevails, though, Crackberry addicts can refer to this handy guide to how to deal if the worst-case scenario happens.

— Richard Martin, Senior Editor, Unstrung

daniel.taylor 12/5/2012 | 4:07:19 AM
re: Judge to Blackberry Users: Drop Dead Mr. Martin is making an assertion not supported by the facts at hand when he discusses "...Spencer's stubborn refusal to take into account the U.S. Patent and Trademark Office's moves to invalidate NTP's patents." The Court's November 30 decision is devoted entirely to the prospect of a PTO decision and appeals process.

That decision is available on Pacer. It's Document #423 for Case 3:01-cv-00767-JRS in the U.S. District Court of Eastern Virginia. Like NTP's 960 patent, it's a worthwhile read for anyone interested in the outcome of this case.
mwatson1111 12/5/2012 | 4:07:10 AM
re: Judge to Blackberry Users: Drop Dead While I compliment Mr. Martin on his ability to write, his argument is extremely flawed. He is suggesting that RIM be rewarded for violating patents simply because there are a lot of customers and "maybe" some of the patents will be invalidated. So if I want to steal IP and make money, it's OK as long as I get lots of customers before someone finds out that I have violated the IP? After all, we don't want to upset customers? If there is someone you want to criticize, it should be RIM, not the judge. If you or RIM were really concerned about Blackberry customers, then start an editorial campaign aimed at having RIM settle with NTP. Or start an editorial campaign aimed at IP squatting scum (which is not-so-subtly inferred in your article). Why should the known violator be rewarded based soley on a presumption of public interest and the hope that their defensive campaign of patent invalidation will work? More importantly, why should a judge be criticized for doing his job and not becoming a 'consumer activist' judge. Let us all hope that you never have any influence over our patent office or judiciary.
RBMartin 12/5/2012 | 4:06:52 AM
re: Judge to Blackberry Users: Drop Dead Actually I think you've mischaracterized my argument. As I said, RIM may well have violated NTP's patents; if those patents are invalidated, though, there's no intellectual property to infringe upon, is there? This seems self-evident. I entirely agree with your larger points -- that RIM should settle, and that the patent system needs reforming.

....and thanks for the compliment.
mwatson1111 12/5/2012 | 4:06:37 AM
re: Judge to Blackberry Users: Drop Dead I'm sorry if I mischaracterized your argument. I understand that the patents may become invalidated. Personally, I have equal distain for IP violators as I do squatters. I also understand that in a perfect world that patent validation and infringement judgements shouldn't be decoupled. Unfortunately, they are. My point was that given the current state of our legal system and this particular case, the victim should be given the benefit of doubt while the peripheral cases are being resolved, not the other way around as you suggest. That's all I meant.

...and you're most welcome.
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