Research In Motion Inc. has cried wolf so many times, it took a few moments after the market had opened Jan. 23 before investors realized that this time RIM might not be kidding. The rejection of RIM's final appeal to the U.S. Supreme Court set the stage for Blackberry networks within U.S. borders going dark, victim of a patent scrap with NTP Inc. that went horribly wrong.
Many applaud the notion of even a temporary silencing of the ubiquitous e-mail service, noting there is virtue in being disconnected. But beyond the smirking over the plight of the "Crackberry" addicted, the pundits point to two problems laid bare by RIM's dilemma.
First, they lambaste RIM for even attempting to play chicken with a patent mill. Companies always protect their customers better when they agree to some licensing terms up front. If RIM had said "yes" to NTP far earlier, the argument goes, the bill coming due would have been much more digestible.
Second, critics point to how overworked yet underperforming the U.S. Patent and Trademark Office is. The patent office now agrees that many of NTP's patents don't hold water, but it came around to that way of thinking only after U.S. District Court Judge James Spencer indicated that he would not suffer the PTO's second thoughts. Call the office late to the game or the judge stubborn, but the back-and-forth legal action suggests the PTO didn't do its job properly in the first place.
In the wake of the RIM-NTP smackdown, the biggest change needed may be legislative. Congress must consider changing patent laws to prevent patent mills, brokering houses and holding companies from existing in the first place. Before everyone whines about the "power of intellectual property," let us cast our lot explicitly with academicians like Lawrence Lessig who argue that what this country needs right now--in copyright, trademarks and patents alike--is looser IP, not more vigorously enforced laws. If tightening the circumstances of using patents results in fewer enforceable patents, so much the better. That would go along with shorter-term copyrights and milder trademark laws that allow satire to exist--all factors that would help, not hinder, creativity.
In patent law, we need rules that award patents solely to those companies, individuals and institutions that can prove an intent to implement the patents. Yes, exceptions should be made for the endangered species of lone inventors who work without corporate alliances or venture backing. And the law must be structured so that huge operations with massive patent portfolios, like TI or Intel, can prove a general intent to implement patents in manufactured devices, without having to prove that every patent in a large portfolio is currently implemented.
But patent law needs to be restructured to prevent holding companies from snapping up patents merely to operate as de facto legal blackmailers. Patent mills perform no useful function other than to enrich their investors, enrage those accused of patent infringement and entangle end users--including the Crackberry addicts who see no reason their habit should support an unknown entity like NTP.
By Loring Wirbel (email@example.com), editorial director of communications/wireless for CMP’s Electronics Group