Opinion

The Professional Inventors Alliance (PIA) USA finds complaints by Research in Motion’s (RIM) chief patent counsel Tom Sanchez in The Lawyer (13 March), that RIM is “the poster child as to why there needs to be patent reform”, to be ironic.

RIM, the manufacturer of BlackBerry, complains that it has been victimised during its long-running dispute with Virginia patent holding firm NTP, which ultimately threatened to cut off RIM’s US BlackBerry email service.

But as the PIA sees it, RIM is a poster child of why the US needs mandatory treble damages for wilful infringement. Perhaps the US also requires a statute to double said damages if the defendant is found to have committed fraud in the court.

Sanchez was reported to have said that “the US lacks the specialist IP courts and judges boasted by the UK and German judiciaries”.

However, we feel that both the US court and the earlier jury which ruled on the matter had no difficulty understanding the technology. Had RIM understood the technology sooner it might have made the crucial inventions that NTP co-founder and president Thomas Campana did.

Judge James Spencer, who oversaw the matter, had harsh words for RIM’s behaviour in court throughout the long-running dispute. In 2002 he even admonished RIM’s legal team for using newer software in a demonstration aimed at proving that wireless email technology had been invented four years before Campana’s in order to make the court believe his 1991 patents were invalid.

“I’ll count to 10. I don’t want to yell at you,” Judge Spencer told RIM’s legal team at the time, before directing the jury to disregard the RIM demonstration. Perhaps if RIM had not antagonised the judge it may have fared better.

It is a fact that RIM could have saved a great deal of money by taking a licence with NTP. And we think that once RIM was engaged in litigation it should have conducted itself differently in its dealings with the court.

In the end, some of RIM’s lawyers profited handsomely from a case that probably should have settled quickly. Inventor Campana’s family and NTP’s investors also made an incredible return on their investment. RIM had the chance to settle this case for a few million early on, and in the end paid more than $600m (£342.7m). By anyone’s standards, RIM gave NTP a very nice return on its investment, 300-fold for five years.

The PIA would argue that the US patent system is the best in the world. It has fuelled the greatest economic success story ever seen. It most certainly worked well in this case and I expect it will work equally well in the Eatoni Ergonomics case, which RIM started with a declaratory judgment action against an inventor who simply tried to licence his invention to them. Now RIM faces the prospect of another injunction to stop the US manufacture and sale of RIM’s 7100 series of devices.

RIM alleges that the US patent system must be overhauled to address its outrage at having been penalised in a US court for infringing on an existing patent held by another inventor. But RIM’s actions are less about the validity of the technological basis of its product than about legal manoeuvring, public relations and lobbying.

What RIM and others fail to accept is that most innovation starts with the inventor, not in the executive suite or the boardroom. The US patent system is the only protection for the inventor to fuel innovation and development for the US economy. RIM was penalised by a respected judge and a legally constituted jury. Am I alone in feeling that RIM got what it deserved?