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How to Avoid BlackBerry Brinkmanship: Patent Re-examination Practice As a Parallel Track to Defend Patent Litigation
In NTP Inc. v. Research In Motion Ltd., 270 F. Supp. 2d 751 (E.D. Va. 2003), the jury found that Research in Motion's ('RIM's') BlackBerry' e-mail system infringes several valid claims of NTP's patents in suit. RIM did not request re-examination of the patents in the U.S. Patent and Trademark Office ('USPTO') until after the jury verdict was entered, and after the Director of the USPTO himself started re-examinations of five relevant patents. After the jury had finished and the USPTO had acted alone, RIM filed 14 additional re-examination requests. Several requests were filed for each relevant patent.
While all those re-examinations were pending, the Federal Circuit affirmed that some of the relevant patents were valid and infringed. NTP Inc. v. Research In Motion Ltd., 418 F.3d 1282, 1290-1291 (Fed. Cir. 2005). The Supreme Court denied certiorari, thus ending the litigation except for the decision on what relief to grant NTP. Finally, when RIM was on the brink of being enjoined, even though the re-examinations had led to several final rejections, it settled with NTP in March of this year to save its business from the disruption that would likely attend the injunction. Re-examinations, however, cannot be settled, so the RIM re-examinations are proceeding today. If NTP is unable to save its pertinent patent claims they ultimately will be canceled, even though the courts did not find them invalid. Future cancellation of claims will not help RIM, however, as it has already paid the full price of its license.
This re-examination strategy failed in the BlackBerry case for simple reasons: The re-examinations were started too late, and too many requests were filed. Filing multiple re-examinations for a single patent, as RIM did, greatly retards the progress of all the re-examinations. The final rejections in several re-examinations had little value to stay litigation, and the re-examinations could not be concluded in time to allow RIM to escape an injunction without settling.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.