Consumers Caught in Patent Case Crossfire

Opinion: Buyers and users of wireless e-mail services are the clear losers in the RIM patent case.

One company makes the Blackberry, the most popular mobile device this side of the iPod. Another is a little-known Virginia holding company with a product line that begins and ends with its wireless e-mail patent portfolio. We think the former is a better example of "the progress of science and useful arts," which is the constitutional justification for letting Congress grant "exclusive right to ... writings and discoveries" in the form of patent protections.

But the U.S. patent system is instead on the verge of shutting down Research In Motions U.S. e-mail operations in deference to infringement claims by NTP.

/zimages/7/28571.gifClick here to read more about the RIM patent case.

When the U.S. Court of Appeals for the Federal Circuit refused to rehear RIMs patent infringement judgment appeal, it cleared the way for the injunction that NTP won against RIM two years ago to take effect.

The result would be to black out RIM e-mail service in the United States, unless several contingencies intervene: The U.S. Supreme Court could take up the matter; the U.S. Patent and Trademark Office could invalidate NTPs patents; or settlement talks between the litigants, which fell apart earlier this year when NTP left $450 million on the table, could be renewed.

Buyers and users of wireless e-mail services are not "interested parties" in this case, as lawyers would define that term, but theyre clearly on the wrong end of this malfunction of the patent system. In the short run, theres not much that those buyers can do—but, in the long run, there are ways that technology buyers can help steer the course of innovation in more beneficial directions.

At a minimum, buyers should protect themselves against a sloppy lack of due diligence by technology providers in understanding the state of prior art in their fields. Buyers should set terms and conditions of purchase that include the sellers assurance of its right to sell the technology in question.

If more sellers faced the prospect of liability for subsequent surfacing of "submarine patents," there would be a powerful motivation to improve the infrastructure and skills base for investigation of existing patents and for challenging those patents with demonstrations of prior art.

Better still would be more active participation by buyers in standards-setting processes, rather than letting sellers dominate such efforts. Buyers should be militating not only for RAND (reasonable and nondiscriminatory) licensing of any related patents but also for royalty-free licensing—the better to open the door to free and open-source competition.

Were not saying that patents should offer no meaningful return on research investments. We are saying that the returns on the patent system are required, as a matter of constitutional law, to go primarily to the citizenry in the form of accelerated progress, with any financial gains to inventors intended solely as a means to that end.

The tail of inventor enrichment is currently wagging the dog of social benefit, and this inversion of priorities may be goading the dog to bark—or bite—in protest.

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