vnunet.com analysis: BlackBerry settlement could speed up patent reform

BlackBerry's cloud may have a silver lining for patent reform

The $612.5m settlement paid by Research in Motion to patent holding company NTP last week has highlighted a fundamental problem with the patent system in the US. 

The BlackBerry maker has essentially wasted money on a licence fee for patents that are likely to be invalidated in a few years because they should not have been awarded in the first place.

But the threatened closure of the BlackBerry service in the US meant that settling the patent claim was RIM's only option if it was to save its business.

Ira Rothken, a Silicon Valley lawyer specialising in high tech law who often defends clients in patent cases, told vnunet.com: "I'm seeing this happen a lot. Unlike many other types of administrative notices, patents are very powerful.

"Once those patents are issued, there is so much downside for the defendant from the cost of litigation to the impact on business, that the defendant will often settle even though the patent is completely bogus."

The debate on patent reform has been raging for some time. While the European Commission is currently reconsidering software patents, it is common practice in the US to file for patents which cover the way software works.

Critics lobbying for patent reform often point to the fact that over 90 per cent of the disputed patents end up being invalidated because of 'prior art', a legal term indicating that somebody else invented a technology before the patent owner filed the patent.

This demonstrates that most patent applications are not properly researched, according to the critics, and that the US Patent and Trademark Office is overburdened and lacking resources.

The patent debate is also relevant to the open source movement. Under the current rules individual developers and end users could be held accountable if a software title is found to violate a patent. This could hold back the adoption and development of open source software.

While the BlackBerry case is not the only high tech patent lawsuit, it became highly visible because the presiding judge was about to order RIM to shut off the service in North America which would have directly affected end users.

"The US Patent and Trademark Office has been somewhat embarrassed by how this thing transpired," Kevin Burden, programme manager for mobile devices and services at analyst firm IDC, told vnunet.com.