Patent holder Visto wants a share of that RIM pie

You know, it has been a bit RIM-patent-fiasco-free around these parts lately. But no worries, since Visto has decided to whip up a bit (more) patent trouble of their own. Fresh off a victory over Seven Networks regarding the same four patents that they claim RIM is infringing, and already mired in legal fights with RIM competitor Good Technology and Microsoft, Visto is looking for more, and they think they can get a payout from RIM. Visto wasn't clear as to what RIM technology is infringing on their patents, but they do mention "Visto's intellectual property serves as the basis for this industry's birth." Quite the strong words when going up against RIM, who had a slight influence on the birth of the wireless email industry if our memory serves us right. RIM believes that the Visto patents are invalid, and that Visto's victory over Seven Networks was in regards to a different type of technology than RIM's. Their patents are also dated before Visto's, but there's really no telling where this could go after the fiasco the NTP case turned out to be. We'll keep you posted.

[epp_b @ May 1st 2006 11:17PM]

Another day, another patent troll. Welcome to America.

[seamus @ May 1st 2006 11:47PM]

Exactly, the trigger-happy trolls need to find a real life. And the USPTO needs some finetuning.

[Deluxe @ May 2nd 2006 12:46AM]

It's funny that you guys make such a big deal about wireless email. It's the standard here in Japan, where only a handful of handsets support SMS.

I assume the delay in email standardisation is in liu of of the fact that service providers are making plenty of cash from SMS.

[AlphaGeek @ May 2nd 2006 4:22AM]

The Visto "victory" was in a court that has never, ever ruled in favor of the defendant - Eastern District of Texas, Marshall. This is the same venue where TiVo recently won a round against EchoStar/Dish. Plaintiffs go venue-shopping for courts which are more likely to give them a favorable ruling, and for patent-law cases, Marshall TX is the place to go.

Interesting how RIM and Seven both seem to have lots of heavy-hitter customers, yet don't consider it necessary to sue the competition to stay afloat.

[George Crawford @ May 2nd 2006 9:56AM]

Re: #4: I am afraid that you sir are incorrect! For several reasons:

1. The Eastern District of Texas is not "plaintiff-friendly", it is "patent-friendly". The judges in the EDTX have made it their business to create local rules that favor the advent of patent cases. These include rules that make for a speedy trial and require ontime production of documents.

For many years large corporations that are typically patent defendants (because they have infringed with impunity) were able to delay trial (due to discovery proceedings) for many years - to the point that the RIM v NTP proceeding took 5 years to come to a head. The EDTX allows for much faster trial - which is good for everyone that wants to go about their business - without infringing.

2. Stating that the EDTX has never ruled in favor of a defendant is absolutely incorrect! 88% of the time the plaintiff wins in the EDTX, however, this is not much higher than the national average - (Virginia for instance comes in at about 70%) (see District Court statistics).

3. Venue shopping is an incorrect assumption. A plaintiff can sue in whichever District infringement occurs. In the case where infringement is national in scope, the plaintiff has the decision to make on where they would like to sue the Defendant. Additionally, the defendant has the opportunity (once put on notice) to sue in another venue.

I am not sure why everyone on the Engadget boards seem to favor large corporations and gross infringement. If I owned a patent and it was being infringed, I certainly would want to protect my intellectual property.

We all have heard the stories where some large corporation because of their shear size and bank account rolls over the little guy - why is protecting your IP any different?

The fact is RIM DID infringe the NTP patents (its irrelevant that they were found invalid after the fact) - the court in VIRGINIA made a determination on the facts and law that infringement occurred - that should be enough to satisfy anyone.

The term Patent Troll is being thrown around without much determination of what it actually means to be a patent troll. It is becoming anyone who sues to enforce their IP and that is too broad a definition.

:)

George

[EvanWasHere @ May 2nd 2006 10:33AM]

George... That was a very eloquent post. Unfortunately, I call bullsh*t on it. The USPTO needs to fix their whole process of approving patents. The fact that companies can patent ideas, and then sue whoever comes up with an actual invention is ridiculous.

Maybe I should patent an on board GPS device for flying machines that uses thermal imaging and electromagnetic sensors to stay away from power lines. Now, I'll never need to actually CREATE anything...just sit on my buttocks until someone actually creates something along the same lines in the year 2050 and then sue the hell out of them.

The whole patent mess is now causing companies to SLOW down on inventions. My friend who works at a technology company told me that in house lawyers have to approve EVERY step they come up with in creating new products and that many many products that would have revolutionized business as well as at home had been squashed because someone had patented the "idea" (but had NEVER invented anything themselves).

Going back to the NTP vs. RIM case, Engadget had a post 2 weeks back that clearly showed NTP's patents are invalid: http://www.engadget.com/2006/04/17/geoff-goodfellow-early-inventor-of-wireless-email-profiled/ These companies that get away with suing everyone doesn't just hurt companies, but hurts consumers in their products now being more expensive because of this, as well as hurting America's technological improvements. No wonder China has such a stranglehold on bringing their products here. Their items are cheaper because they don't have such a backwards patent process.

I could go on for hours... But, unlike NTP and VISTO, I work for a living.

[George Crawford @ May 2nd 2006 10:47AM]

Evan, haha, thank you for saying my posting was eloquent.

I do have some criticisms of yours though in response:

1. you cannot patent an idea. you have to have 3 things for an invention to be patentable: NEW, USEFUL, and NONOBVIOUS. (in the EU this last one is called inventive step). These three things a patent makes.

2. NTP did invent something - just because the guy was a failed business man does not mean he is a failed inventor. He did invent and he spent many years doing so.

3. Your idea of patenting a device to help flying machines avoid power lines is GREAT! However, 1. the patent would be expired by 2050 (20 years from date of filing is the term), 2. you have to sue without undue delay (called laches), 3. you have to have invented something (so more than just the idea of a flying machine with wire evading capabilities - you would need to actually SHOW how this will work)

4. in-house counsel SHOULD play a role in the development of any new products - FOR MANY REASONS - in fact I would blame the engineers for shying away from, and despising their in-house lawyers. It's almost standard procedure that the engineers hate the lawyers and yet everyone is on the same team. Lawyers work with regulatory, contractual, and business relationships - Engineers design and create - the two need to work together to make the business effective. (I am a lawyer in case you were wondering).

5. You are simply incorrect with regard to the China comment. FOR SO MANY REASONS: 1. China has historically not been a net inventor but rather a net IP thief. 2. China has historically been the West's manufacturing base (with the West providing the ideas and technology and China manufacturing it cheaper and faster), 3. Only recently has China become an innovator on the Global Scale (think Lenovo and the takeover of IBM) 4. With China taking a front seat in innovation, we will see more Chinese companies asserting their IP rights in the US (see Hynix (Korean chip manufacturer) that for the first time sued a US company for patent infringement) - and China has also started litigating its patent rights here in the US.

Anyway, back to work for me too!

George

[EvanWasHere @ May 2nd 2006 11:07AM]

You're a lawyer??? I would have never guessed..

Don't u hate it when you have nothing to reply back with?

I agree on some of your points. I agree that patent holders SHOULD be protected. But I am worried that the USPTO is too easy going with giving out patent approval. The idea of patenting wireless email is ridiculous in any shape or form.

Evan

[SideSwipe @ May 2nd 2006 1:12PM]

"Visto wants a share of that RIM pie"

This concludes another round of "Things that sound dirty, but aren't".

[John Commenter @ May 2nd 2006 1:45PM]

George is hardly a disinterested observer. He's not just a lawyer, he's troll counsel.

His points are based on troll counsel assumptions and legal fictions. His points are either the Chewbacca defense, the trivial case, or both - yes, George, that could happen, but that is not what is happening here. And no, I don't have the patience to go through your crap one by one. You'll just bring in statistics and lie with those.

Troll counsel assumes a granted patent is pretty good - and so does the law. Most aren't. You don't need utility, novelty, and obviousness - you just need the USPTO to think you have it. Then, beribboned extortion license in hand, you go to George. That is where George makes his gravy, because most folks won't actually go to trial, it would be insane to. Far better to pay off a hundred grand than risk 50/50 on a couple of million. In RIM's case, half a billion was not as much as the market cap uncertainty.

Patent law in the U.S. is nothing but legal fictions. There is no administrative competency and no reason for a presumption of validity; there is only a flea's knee level of obviousness to overcome so risk analysis essentially ignores it; and the main appeals court doesn't believe in their own rules for patent interpretation, so they change them all the time.

George, you're full of it. Go over to Slashdot where you'll get the welcome you deserve.

Other guy - nah, China's products are cheaper for lots of reasons, patents probably null percent, mostly good old fashioned labor cost.

The USPTO doesn't let patents through too easily, they let them through essentially of random quality. That problem is unfixable, so it's probably better to change the enforcement side so that it doesn't matter what the quality is. For example, requiring some kind of reexamination before any patent is enforced, etc.

[George Crawford @ May 2nd 2006 3:00PM]

Re:10 haha that's funny that you clasified me as "troll counsel" without knowing anything about the type of work I do as a lawyer and whether I even do IP work at all. In fact your assumptions are not even close.

Not only that but your comments smack of a complete lack of understanding as to how patent litigation works.

You assume that 1. "troll counsel" would take a case for only a few hundred thousand. you are dreaming. there is no money in a case worth nothing. 2. you forget that patent litigation is expensive FOR BOTH SIDES (plaintiff and defendant). Experts cost money, depositions cost money, court costs - cost money, and basically patent litigations typically run as high as several million (yes million) dollars FOR BOTH SIDES each. So why would a plaintiff sue if they have a useless patent - you need a good patent and a strong case or you are throwing good money away.

I was actually just thinking about RIM and why it is such a good target right now and the answer is simple. They were nailed for a 600 Million dollar verdict because they mishandled their case (managing to file the same motion 4 times and receiving 4 rejections - they should have stopped at the first one) and played the wrong game. They had numerous opportunities to settle, numerous opportunities to make the litigation go away but they wanted to play hard ball with a case that was not heading in their favor. They are the cause of their own demise not some company asserting its IP rights.

Microsoft can afford to play hard ball. Why? Because they have 40 Billion in cash. They can afford to make a small offer and cause the other side to spend a fortune in legal fees - even if the verdict that comes down is in the hundreds of millions, they just use interest to pay off the judgment. But a company like RIM with a mere 1 billion in the bank should carefully consider fighting versus settling - not to mention the negative affect on business during the litigation. It was not worth it to litigate when settling was a better option. This was their tactical decision and one that they are living with now.

The USPTO grants a right that is enforceable if infringed upon in the same manner as someone who steps onto your property and trespasses.

As for heading over to Slashdot, I am there too. I just happen to like the pictures at engadget better than the text at slashdot.

:)

George.

[Ali @ May 2nd 2006 5:03PM]

OK...i've read the increadibly long messages, and I see the the two sides have good points. One says that the current system sucks, and the other complians about why the big companies don't wanna follow the current system! Interesting....
beside all that, George, I have a geography lesson for you:
Hynix is in Korea. Korea and China were two different countries. Last time I checked koreans were following IP laws (Rambus vs. samsung...samsung actually agreed to pay) and the chinese weren't. So yea...don't just mix everything together cuz the countries are close!

[vincent @ May 3rd 2006 1:36AM]

#3: This isn't at all about SMS, this is about pushing regular email to your phone. So instead of having to go to use computer (PDA, POP client) to read emails to your regular emial address, e.g., [e-mail], it gets flagged and pushed to your mobile device. Moreover, the XXYY00 mail that is pushed to your phone will still be available to read on your computer. That's what makes it different that SMS (or keitai mail) and also different from using a phone based POP/IMAP client (which aren't popular in Japan anyway).

As far as I know only Voda-JP offers a service like this, though Willcom
probably does as well. Moreover, I don't think Voda's system is
nearly as nice as the blackberry connet service.

Regarding keitai mail in Japan, at least Dokomo, and Vodfone use SMS and have some degree of international interoperability. And MMS or EMS fills pretty much
the same place as the long-mail service offered by the Japanese providers, so I dunno. I don't think there is so much difference in the service anymore.

hope this helps you.

[Jimmy @ May 6th 2006 10:58AM]

I am a spammer: [e-mail]