RIM Patent Case Goes into Extra Innings

A brief from the Canadian government says that by upholding the patent-infringement ruling against Research In Motion, maker of the BlackBerry, the U.S. appeals court could significantly harm Canadian technology companies and innovation.

The three-year-old patent dispute between NTP Inc. and Research In Motion Ltd. (RIM), the maker of the BlackBerry e-mail device, saw a flurry of activity early this year as the Canadian government stepped into the fray.

The Canadian government argued in a brief filed Jan. 13 that a decision by the U.S. appeals court on Dec. 14 to uphold the patent infringement ruling against RIM and send the case back to a lower court for judgment could significantly harm Canadian technology companies and innovation.

Canada asked the U.S. court to consider RIMs appeal to rehear the case before 12 judges, or "en banc," rather than return the case to the lower court.

At the heart of RIMs defense is its argument that its Waterloo, Ontario-based servers, which handle all e-mails sent via BlackBerry devices, place it outside of U.S. patent laws. The Canadian government says any business with operations in both countries could be negatively affected by an "extraterritorial" ruling by the court finding RIM at fault, and asked the court to reconsider.

"Given the number and proliferation of businesses that conduct integrated operations across the Canada-United States border, the panels decision affects a substantial number of businesses with Canadian operations, including those carried on using networks and telecommunications," the brief said.

"En banc review would allow the court to be assured that its interpretation would not lead to inappropriate application of U.S. patent law."

Josh Lerner, a Harvard professor and co-author of "Innovation and Its Discontents," a critique of the U.S. patent system, said the direct involvement of a foreign government in a patent case is fairly unique, and its unclear whether this move will help RIMs case.

"There are a lot of efforts for governments to get involved in creating patent policy, but the involvement in actual, individual disputes tends to be an exception," Lerner said. "This will certainly raise the profile of the case and some of these issues."

NTP Inc., a licensing company that owns several e-mail patents, including the one it says RIM infringed upon, also filed several briefs to the U.S. District Court for the Eastern District of Virginia in response to Canadas involvement, and believes the court will not grant the requests.

"Its likely the petition will be denied," said Donald Stout, NTP co-founder and the companys lawyer. "Its an extremely unusual move, and its premise is faulty."

Next Page: "Everything that occurs using a BlackBerry is in the U.S."