At a technology conference I attended over the weekend, several folks asked me what aspects of the patent law may possibly entitle NTP to seek patent infringement redress from BlackBerry-maker Research In Motion.
Being an informed follower of this case but not being a lawyer, I did my best to explain. But in this morning's Richmond (Va.) Times-Dispatch, intellectual property lawyer John Farmer (hey do you suppose he's ever heard a "Farmer John" joke?) does a far better job explaining this than I, someone who didn't quite make it to law school, can.
Not part of the BlackBerry case, Farmer is, however, based in Richmond, where Judge James Spencer has been hearing the controversy. So you might want to assume that Farmer not only has topical perspective, but on-the-scene perspective as well.
"Under current U.S. patent law, if you prove infringement of your patent in a final decision, you are entitled to an injunction against continuing infringement in the absence of extraordinary circumstances. Such an injunction might shut down a product or even the company that makes it," writes Farmer, an attorney with The Leading-Edge Law Group, PLC.
Farmer sees a reasonable defense by RIM at one that raises the following points:
What if the patent holder doesn't utilize that patented technology in an actual product or products?
What if the patent holder's sole business is to sell licenses to use its patented invention and if its primary sales technique is to threaten to sue for infringement?
Since NTP will license its patent to anyone, should that make a difference?
What if the patent holder purchased the patent rights rather than invented the technology?
"Should it matter if the defendant's product draws upon thousands of patents and if the patent at issue relates only to a small part of that product?," Farmer asks. He appears to be drawing the conclusion that the NTP patents in question uses lots of "prior art" - art depicting solutions devised by others- as part of the patent documentation.
For his part, though, Farmer doesn't appear to believe that these arguments will shield RIM from being enjoined.
"Presently, none of the conditions listed above generally will block a patent holder from obtaining a permanent injunction," he writes.
