RIM v. NTP Continues to Trouble Patent Office

Although NTP v. RIM settled years ago, the PTO’s reexamination of NTP’s patents have continued to plod along. PatentlyOImage009In the background are allegations by NTP that PTO officials improperly (and covertly) met with RIM CEO Jim Balsillie and other RIM representatives regarding the ongoing (ex parte) reexaminations.

During ex parte reexaminatoin, third-party communications are strictly forbidden.  It is clear, however, that in the months leading up to the NTP settlement, the PTO was feeling a tremendous amount of political pressure from RIM as well as Congress and the Senate.

Now, Congressman Howard Berman has demanded information from the PTO regarding these meetings “hand-delivered” by “May 19, 2008.”

“Did this meeting [with Balsillie and counsel] take place? What was discussed at this meeting? What is the USPTO’s policy concerning ex parte communications between senior USPTO officials and parties who have an interest in the outcome of proceedings before the office? In what other instances, if any, did senior USPTO officials engage in similar ex parte communications with parties that had an interest in the outcome of a proceeding being conducted before the Office?”

Hopefully the Office will be able to provide Chairman Berman with a tidy set of evidence to clarify the rules and exactly what happened.

Documents:

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

50 thoughts on “RIM v. NTP Continues to Trouble Patent Office

  1. Bump for those of you interested.

    Oral arguments at the BPAI for three reexamined NTP patents under appeal are next Tuesday (10/28/2008) at 10 a.m.

    BPAI hearings are open to the public. I will be there because it will be the first week of the bi-week, so I will not have started working hard yet.

  2. Dear big hr,

    Thank you for your comment, but I am constrained to disagree.

    Re:
    “When the Constitution says that the patentee will have the exclusive right it may mean nothing more than that the patentee has the right to sue in law for damages.”

    With all due respect, that kind of leap of faith is commonly saved for religious beliefs.

    For the reason described in the Endnote on this link:
    link to patentlyo.com
    the normal, natural, neutral reasonable interpretation of “the exclusive Right” may be Just that, “the exclusive Right,” i.e., the Right to exclude all but “one,” the patent holder, just as it says on the ribbon cover of my patents since 1968:
    “Therefore, this United States Patent
    Grants to the person(s) having title to this patent THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, or selling the invention throughout the United States of America …” (emphasis added)

    Here’s the thing: The Constitution is THE Law of the Land—the Constitution is not common law; rather, it is THE SUPREME LAW. The Patent Clause’s “exclusive Right” is THE SUPREME LAW of the LAND, the supreme LAW that supersedes ALL Congressional and ALL States’ laws and statutes.

    The Patent Clause is not common law; the Patent Clause trumps ALL other laws including Congress’s 35 USC 283 and even the Supremes’ eBay opinion which is Constitutionally DEFECTIVE.

    Boston Legal’s Alan Shore’s stunning lambasting hit the proverbial nail on the head when he said to the nine Justices, “You folks aren’t as hot as all get out.”

    The Supremes screwed up, they made a serious Constitutional mistake when they took away with their eBay ruling the self-employed independent inventor’s bullets from the patents that have historically been granted to inventors throughout our American patent history.

    A patent without “the exclusive Right” to stop infringement is like a revolver without bullets— as Rooster Cogburn, played by that great American hero, JOHN WAYNE, said in “True Grit” to Mattie Ross of Dardanelle in Yell County (who drew her noble lawyer, J Noble Daggett, like a gun):

    “Well, a gun that’s unloaded and cocked ain’t good for nothin’ ”.

    While YESTERDAY’S FOUNDERS KNEW HOW A PATENT MUST WORK, today’s Supremes are plagued with gobbledygook and don’t comprehend the most fundamental patent precepts of LAW (and it remains to be seen if they understand the fundamental Second Amendment).

    I truly appreciate your courtesies nonetheless and offer my sincere appreciation for your candor. Wouldn’t it be great for Professor Crouch to throw a Patently-O Bash in DC and invite all his loyal readers to March on Congress to stop the Patent Reform billshit.

  3. Jaoi™ said I should read these two posts because there was going to be a test, and there was going to be a prize for high-score. Seriously, yes, there is going to be a test, and maybe a trick question or two too.

    Part II — link to patentlyo.com
    Part III — link to patentlyo.com

  4. “It is my understanding that if a first inventor invents something first, keeps it a trade secret, practices his invention and doesn’t file a patent application, he can continue to practice his invention even if a second inventor subsequently and independently invents the same invention and secures a U.S. patent.”

    I believe that’s incorrect. At least usually. The patent law is designed to promote disclosure, thus it can sometimes appear to be punitive towards those who keep their technologies secret.

    Infringement is defined by Section 271 of the Patent Act in broad terms – “WHOEVER … makes, uses, sells, …” Section 273 provides a defense for prior inventors, but only for “methods of doing or conducting business,” and only if they can prove can prove continuous commercial use dating to 1 year before the patent application date. I don’t believe this limited defense is transferable.

    Note that this and other elements of the patent law recognize that there can be two inventors of the same thing. The commentary on this board is often confused in that it rolls in the concept of absolute novelty with the concept of invention. A later inventor is still an inventor, and his creation is still an invention, even if it’s been done before. Further, an invention might not be new, but may still meet the legal requirements for novelty, if the first inventor hasn’t disclosed it.

    I can hardly wait to read part III.

  5. Part III:

    IBM, Acacia Research, General Electric, Procter & Gamble et al.
    – – – v. – – –
    The Coalition for Patent Fairness, CISCO Systems et al.

    For about a century, IBM set the gold standard under The United States Constitution’s “Article I, §8.8: …To … promote the Progress of Science…” by INVENTING, PATENTING, PUBLISHING and LICENSING PATENTS.

    link to en.wikipedia.org “IBM holds more patents than any other U.S. based technology company. … IBM employees have earned three Nobel Prizes, four Turing Awards, five National Medals of Technology, and five National Medals of Science.” And IBM is the second largest software company in the world.

    IBM’s annual profit is estimated to be more than $1 Billion in licensing revenue.
    Historically IBM’s licensing business was based on inventing, patenting or publishing everything under the sun so it minimized the risk of infringing others’ patents and thus risking paying out licensing royalties and to build a tidy licensing business.

    IBM and other companies like Acacia Research that license patented technology are the perfect example of the strong American patent system at its best. Undeniably, such companies “… promote the Progress of Science…” BY ENCOURAGING INVENTION AND PUBLISHING.

    Along comes upstart companies, like modern day CISCO SYSTEMS, INC. (Cisco), which may be too lazy and lack sufficient competitive creativity to invent and publish. Rather, Cisco and its co-conspirators in the “Coalition for Patent Fairness” WANT TO STIFLE OTHERS’ INVENTING and PUBLISHING.

    Rather than follow the GOLD-STANDARD example set by IBM – Invent, patent, publish, invent, Patent, publish, Invent, Patent, Publish (“IPP”) … Cisco et al. want to hijack our government lock stock and barrel – Congress, the Executive’s PTO and the Judicial Branch – through boldface lying, lobbying and other nefarious efforts.

    Rather than foster invention and encourage inventors, Cisco and its Coalition want to cut the heart out of the strong American patent system; they Let Lie after Lie roll off their Lousy Lobbying Lips.

    And they also do so anonymously, unlawfully, deviously, dishonestly and deceitfully. Oh the multiple serious ironies of it all, calling this despicable group of conspirators the “Coalition for Patent Fairness”! It would be so funny if it weren’t so fundamentally tragic—to tear down America’s constitutionally instituted patent system in an effort to seek Patent Fairness.

    In case you missed it, the March 27, 2008 “BusinessWeek” article said this about the CISCO GENERAL COUNSEL, MARK CHANDLER:

    “Cisco General Counsel Mark Chandler even cited the [scandalous Cisco Patent Troll Tracker] blog as a good independent source of information while in Washington lobbying for changes to patent law that would rein in trolls, unaware he was plugging the work of a Cisco employee.” [insert added]

    Please see full article. “BUSTING A ROGUE BLOGGER”:
    link to businessweek.com

    With all due respect General Counsel Chandler, and you who may say I’m going overboard when I say the “Coalition for Patent Fairness” THREATENS the AMERICAN PATENT SYSTEM and the VERY FREEDOM AFFORDED by our CONSTITUTION —

    Just THINK about the Butterfly effect:
    link to en.wikipedia.org

    This is Jaoi™ and yes, boy do I ever have more to say in Part IV, coming up. I’ll keep you posted (õ¿Q).

  6. Hello Leo,

    Further regarding your comment posted yesterday,

    “ ‘The FIRST to INVENT gets ‘…the exclusive Right to their…’ invention. If another INDEPENDANTLY, without any copying, discovers the invention later, s/he is sShit Out of Luck.’
    Right. Unless the first to invent doesn’t file. Or isn’t diligent about filing. In which case a second inventor can get an exclusive right. Is that part unconstitutional?”

    It is my understanding that if a first inventor invents something first, keeps it a trade secret, practices his invention and doesn’t file a patent application, he can continue to practice his invention even if a second inventor subsequently and independently invents the same invention and secures a U.S. patent.

    However, the first inventor cannot license or grant third parties rights to the invention, although I assume the first inventor could sell his business along with the right to practice the invention.

    The 11th hour is rapidly approaching – I’m just about finished with Part III …

    “IBM, Acacia Research, General Electric, Procter & Gamble et al.
    – – – v. – – –
    The Coalition for Patent Fairness, CISCO Systems et al.”

    Please stay tuned.

  7. “The CAFC refused to stay the injunction and the case settled without a hearing on the merits at the CAFC. RIM lost its right to appeal by the threat of its business being shut down during pendency of the appeal.”

    I don’t think that’s right, Alan. RIM appealed the verdict of infringement and the judgement for $450M, and the injunction was stayed during the appeal. The CAFC ultimately issued two opinions. At issue were various claim constructions and the territoriality issue. After the appeal, apparently because it was pretty clear that an injunction was imminent, RIM settled.

    Whether the case should have been stayed for the re-exam is another matter. But RIM was not cheated out of an appeal.

  8. The CAFC refused to stay the injunction and the case settled without a hearing on the merits at the CAFC.

    RIM lost its right to appeal by the threat of its business being shut down during pendency of the appeal.

  9. “courts should encourage early filing of reexams to avoid wasting judicial resources” I agree

  10. “The DC could have entered judgment $$$, granted and stayed the injunction, and let the case to up to the CAFC on appeal.”

    I thought the district court did stay the case and that it was only until after RIM lost on appeal that the district court refused to delay entering the injunction.

    “the Court should have stayed the proceeding”

    no, as The Woodwork noted above, RIM made a litigation choice and should be stuck with it.

    Also, courts should encourage early filing of reexams to avoid wasting judicial resources. Allowing the late filed reexam to stay the injunction would only serve to encourage more late filing.

  11. “perhaps the only industry specifically DESCRIBED AND AUTHORIZED IN THE CONSTITUTION.”

    I suppose you missed the rest of the constitution that deals with taxation, raising and equiping armies etc etc.

  12. I did not say “stay the proceeding” I said “stay the injunction”.

    The DC could have entered judgment $$$, granted and stayed the injunction, and let the case to up to the CAFC on appeal. NTP gets its decision on the merits and RIM has a fair chance to appeal without having to shut down its network to do so.

    But no, this judge wanted to show how powerful the rocket docket is and how it could single handedly put a company out of business.

  13. The PTO may have issued a non-final office action rejecting all claims, but that is hardly an indication of an “intention to cancel the patents.” It’s just the first salvo in a long battle.

    RIM didn’t even file its first requests for reexamination until a month after the jury found infringement, and nearly a year after the complaint was filed. You can’t wait that long, and then expect the Court to bail you out. I assume that RIM didn’t want to take positions in front of the PTO that conflicted with positions they were taking in the district court, on issues such as the scope of the claims. But that’s a strategy decision they chose to make, so they have to live with the consequences.

    (Jury verdict entered November 21, 2002, see link to news.findlaw.com; first re-exams filed December 26, 2002, see link to en.wikipedia.org)

  14. “That’s why the district court refused to stay the case.”

    As I recall, when the court refused to stay, the USPTO had already issued decisions indicating an intention to cancel the patents. Under those circumstances, and recognizing that the NTP could have been made whole with money, the Court should have stayed the proceeding.

  15. To those who blame the Court for refusing to stay the NTP v. RIM litigation while the PTO did it’s thing…

    It’s important to recall the timing of RIM’s re-exam request. They didn’t file their re-exam request at the outset of the litigation. Instead, they waited until the case was nearly over, and it was apparent they were going to lose. That’s why the district court refused to stay the case. RIM brought this on themselves by failing to be diligent in requesting re-examination right after they got sued.

  16. Good Morning Leo,

    Thanks for the softball (©¿®) and helping make my point.

    Patents are inherently unfair in multiple ways, for example, as you describe, and, as described on this link:
    link to patentlyo.com ):

    Patent are inherently UNFAIR, but PATENTS DO PROMOTE THE PROGRESS OF SCIENCE.

    In accord with our Constitution, if Congress elects to do so, it is up to them to create patent statutes, and if Congress does do so, Congress must abide the Constitution, and Executive Agencies that administer the patent system must abide the Constitution and Congress’ lawful patent statutes, Just as must every Judge who sits on an American patent bench, ESPECIALLY THE SUPREMES since, as far as the government goes, the buck stops in their Court.

    Here is a shameful example of a Supreme Court Opinion that is patently in violation of the Constitution’s Patent Clause (as Boston Legal’s Alan Shore said, “It seems to me the Supreme Court of the United States should be made of sterner stuff; am I right?–Justice Thomas, at least put down the magazine.”):

    link to patentlyo.com

    A patent without an injunction is like a revolver without bullets— as Rooster Cogburn, played by that great American hero, JOHN WAYNE, said in “True Grit” to Mattie Ross of Dardanelle in Yell County (who drew her noble lawyer, J Noble Daggett, like a gun):

    “Well, a gun that’s unloaded and cocked ain’t good for nothin’ ”.

    While yesterday’s Founders knew how a patent must work, today’s Supremes do not.

    [ And yesterday’s Founders gave citizens the right to bear arms; soon we will find out if today’s Supremes take away/limit that right. Is anyone handicapping the Supremes’ Second Amendment case?
    link to supremecourtus.gov
    ]

  17. “The FIRST to INVENT gets ‘…the exclusive Right to their…’ invention. If another INDEPENDANTLY, without any copying, discovers the invention later, s/he is sShit Out of Luck.”

    Right. Unless the first to invent doesn’t file. Or isn’t diligent about filing. In which case a second inventor can get an exclusive right. Is that part unconstitutional?

  18. — Part II — is a good follow up to yesterday’s comment up thread, on this link, but the pertinent part is excerpted below the link:
    link to patentlyo.com
    Excerpt:
    My guess is we may see jail time for PTO higher ups if and when this matter goes CRIMINAL — no doubt the Department of Justice will be investigating. All this and this debacle too:
    A) It was PTO Director Dudas who unlawfully attempted to steal Congressional authority to revamp and deconstruct the American patent system via horrendous Patent Reform.

    B) Director Dudas got sued; the result of such Patent Reform proposals and litigation (all of which wastes tons of PTO money), the Director was permanently enjoined from making this blatantly unlawful theft of authority from Congress.

    C) Director Dudas then has the brass balls to file a ridicule Appeal.

    So how does the PTO react to losing its bid to steal Congressional authority?
    Rather badly; by inventing the most petty reasons conceivable, the PTO, now out of apparent vengeance against patent attorneys and their inventor clients, REJECTS and RETURNS PENDING PATENT APPLICATIONS WHOLESALE.

    * * * * *

    — Part II —
    Who Are You Going to Blame for Hijacking Our Government and Onerous PATENT REFORM PROPOSALS?

    Most repeat readers of Patently-O tend to participate in the IP industry, perhaps the only industry specifically DESCRIBED AND AUTHORIZED IN THE CONSTITUTION. Our industry today faces huge problems, far beyond the now and again thread-jacking of a particular article on this particularly popular Patently-O blog.

    OUR INDUSTRY for the most part HAS BEEN HIJACKED by the Coalition for Patent Fairness conspiracy et al. comprised of software and other relative newcomers who would dummy-down U.S. Patents to the mild mannered mostly meaningless documents some other countries issue. As its name suggests, its marching mantra for its LOBBYING efforts is “FAIRNESS.”

    “FAIRNESS”— there is SERIOUS IRONY in that word.
    While promoting the useful Arts, yes, Copyrights are inherently fair.
    Patents, however, are quite different.
    In the real world, Patent are inherently UNFAIR, and of this our Founding Fathers were quite aware, but PATENTS DO PROMOTE THE PROGRESS OF SCIENCE nonetheless!

    Inexplicably, the “Coalition for Patent FAIRNESS” is IGNORANT of these facts, else why would they promote “…Patent Fairness”? “Fairness” does not exist in Science, never did; Progress does exist, as does Science, but not fairness.

    The FIRST to INVENT gets “…the exclusive Right to their…” invention. If another INDEPENDANTLY, without any copying, discovers the invention later, s/he is sShit Out of Luck. This according to the United States Constitution (This is described further in this comment:
    link to patentlyo.com ):

    “The United States Constitution … Article I, §8.8: The Congress shall have Power To … promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    Under the Constitution, the ONLY LAWFUL WAY to change this essence of Congress’s Constitutionally established U.S. Patent System is by Constitutional Amendment. In America, there is no other lawful way.

    Isn’t it apparent that the Coalition for Patent FAIRNESS has been LOBBYING Congress so LOUDLY as to be heard by the main stream Media, little tributary Media and by We the American People, as well as the PTO management team including its most impressionable dimwits, by Judges across the Land and in Washington’s use-to-be patent-friendly patent-savvy Federal Circuit Court of Appeals, and by our Honorable Supreme Court Justices who, as Boston Legal’s Alan Shore’s stunning lambasting thereof put it so well, “You folks aren’t as hot as all get out” (and that was in regard to a capital matter; patents are more obscure and far beyond the reach of the Supremes) to VIOLATE the Constitution mostly unwittingly, BUT WITTINGLY AS WELL for it seems our government’s three branches “don’t give adamn for our greenbackin’ dollar” (lyrics by the Kingston Trio) any more than they do for one of the most stunning achievements of our Founding Fathers, The United States Constitution— we went off the gold standard and now are mostly off the Constitutionally standard, but I suspect I am beginning to repetitively preach to the choir majority (this is one long sentence, like a claim)?

    Is Contributory Inducement to Violate the Constitution unlawful?
    Anybody?, anybody?, Bueller? Please bear in mind – in the world of American patent statutes, “inducement” constitutes infringement, as does “contributory.”
    (Does contributory inducement to infringe constitute patent infringement as does one or the other? I’ll bet it does.)

    Has the “Coalition for Patent Fairness” even once lawfully LOBBYIED for a Constitutional amendment to change the Framer’s “Patent Clause,” Article I, §8.8. If the “Coalition for Patent Fairness” wants fairness, that’s the only lawful path to take to accomplish that objective. However, given past history, it is my opinion that the Coalition should be abolished and its prime movers appropriately and fairly sanctioned. Just consider, for one example, the REJECT, RETURN, REJECT, RETURN … vindictive mess PTO management has foisted on our industry Just because their Coalition led by CISCO et al. inspired onerous PATENT REFORM was permanently enjoined.

    * * * * *

    This is Jaoi™ and I (holding my breath on bended knees, hands folded with head beseechingly raised) approve this message,
    and I have more to say in Part III,
    coming up — at 11 AM tomorrow, Friday, I plan to post Part III titled:

    “IBM, Acacia Research, General Electric, Procter & Gamble et al.
    – – – v. – – –
    The Coalition for Patent Fairness, CISCO Systems et al.”

    If there are questions or comments about tomorrow’s anticipated Part III to which anyone would like me, Jaoi, to respond to, I plan to be back after my long, lightly lubricated TGIF lunch, God willing.

  19. Man, this guy has got some huge conspiracy theory all worked out doesn’t he?

    From what I see the statute doesn’t prohibit the talking to third party requestors, but rather that the participation of the ex parte reexamination requester ends, and that no further submissions will be considered.

    I’ve seen no evidence that anything they said was considered by the examiner. Nor that there were any communications between the office and the parties that are directed to the merits that are not in writing and filed. I don’t see any communications directed to the merits of the case as a matter of fact. Just because they met to discuss things doesn’t mean they discussed anything “of merit” as it is strictly defined, i.e. anything not on the public record.

    Perhaps someone could point out for us what they’re alleging actually took place, and what evidence supports that. (other than the grand book creating project they allege happened).

  20. this is about politics … plain and simple …

    to argue that an infringer, yes RIM is an *infringer* and to add fuel paid some +370 mil for patent assets in the 1st qt of 2008 (gee NTP was dismissed at what 10 mil? 15 mil? in 2001? 2002? – why would they actively purchase 100s mil of patent assets now? defeat of the current patent reform act?), as initially determined by a judge and jury, should get multiple bites at the legal apple is simply ridiculous … “PROMOTE” not “RETARD” the progress of the useful arts …

    answer is simple :: do not infringe !! period !! read the briefs in the case, and the appeals and the certs – the actions taken as with many other serial infringers is simply disgusting and should be curtailed by the judges hearing these cases … enough with the nuance – infringement should be punished, period.

    were this a copyright case all hands on the deck, right? rep. berman and rep. coble and any others who have moved mountains to protect copyright (ill leave trademark alone here) would be in the press every day and the court[s] as per legislative action[s]/statute[s] – helpfully pushed by very successful special interests (not the artists or creators themselves) would have shut them down … napster // mp3.com // aimster // et al. …

    hundreds of millions of dollars spent and litigated and no one blinks … billions spent on further protections that cost *each consumer* with no empirical reason (DMCA, broadcast flag, digital television, etc. etc.) other than to extend protections beyond “limited times” of “business models”

    can anyone identify who the white house counsel is? can anyone identify how many times RIM sought relief from the SCOTUS? can anyone explain what was “normal” about this case? can anyone point to comments made by the SCOTUS in patent cases identifying the “public good”?

    if you do not believe that patent litigation is *fair* advise your clients not to infringe !! if you are hung up on finding some one // any one to concur that a particular claim is invalid good luck – in the meanwhile – discourage infringement, plain and simple …

    the consequences of attacks on the US patent system is not a question of validity but equity …

  21. “I thought that we had pretty much done away with injunctions in the wake of Ebay v. Merc Ex.”

    I’m not sure that’s entirely true, but RIM finally settled with NTP 3 months before the eBay decision. The threat of an injunction apparently loomed very large for RIM, despite the noise they made about having a design around. Note that the settlement was for $612 million (not the $650 million I referenced above). Compare this to the actual award of $450 million and you get some idea of the value of an injunction.

  22. Alan, I thought that we had pretty much done away with injunctions in the wake of Ebay v. Merc Ex.

  23. I’m going to take a different and expectedly unpopular position.

    I place the majority of the blame on the Virginia District Court judge and his goal of keeping his rocket docket moving.

    If he had just stayed the injunction until the PTO had time to act on its own schedule, RIM would not have needed to (if they did)try to push the PTO.

    Also, with the Supremes about to question almost automatic injunctions in patent cases, NTP would have almost completely lost its hammer and this case could have settled for alot less or RIM could have gone through the normal appeals process.

  24. Dear big,

    I checked with BHR, Congressman Berman, House of Representatives. He had a good laugh, saying, no I’m not the famous blogger big hairy rat, but I was once called by James Cagney, “You dirty rat!” Then he told about a funny automobile story on this link:
    link to youtube.com

  25. Wait a minute here, you’s guys – what ever happened to respect for the rule of law?

    The reason we’re all so indignant with the PTO is that they obey the law only when they find it convenient.

    Validity is a big deal – that’s why we have elaborate and careful legal procedures for dealing with it. When those procedures are violated, it’s bloody hard to trust the substantive outcome on the “ultimate question.”

    As these events were unfolding, a court had found the patents valid and infringed. Why would anyone want anything other than for the process to run its course, with care, and in a way that all concerned would see that the process had been allowed to work without subversion?

  26. Dear big,

    I feel so silly – imagine my chagrin now having written up-tread:

    “BHR [California Congressman Howard Berman] is correct. If PTO higher ups violated legal or ethical duties by meeting with the CEO of RIM, then sure, they should face some consequences.”

    I was thinking, of course, Berman, House of Representatives…

    * * * * *

    Dear Leo,

    You are right—not my day today.
    I gave a dispositive example of a nonetheless bad situation.
    That’s my second mistake today (see note to “big” above ^ ) and there could be more

    I’m thinking maybe I’ve earned a double dose of early happy hour today.

  27. “Dear big (please excuse, I don’t like to call anyone a “hairy rat”),

    Precisely. I adopted “big hairy rat” as a screen name in a completely different context where I kept attracting flame wars because I expressed an unpopular point of view (which turned out with time to be right). The joy of “big hairy rat” is that people cannot help but feel ridiculous when they argue with a “big hairy rat”. You can see the phenomenon at work in this blog by the number of people who address me as BHR or Rat or other variations.

  28. “It has become all so subjective that those lacking integrity can screw inventors, namely the little guys, at a whim.”

    Sorry, JAOI, but you’re making this comment in the context of a discussion about NTP v. RIM, where RIM (the big guy) paid NTP (the inventor/little guy) $650 million! If RIM applied improper pressure on the PTO, it failed, which seems to disprove your point.

  29. Dear Lionel,

    Good question:
    “Why should RIM have paid NTP if it did not believe the patents were valid?”

    But why would RIM allegedly have to “reach out” ex parte to touch scrupleless Dufas if it did not believe the NTP patents were valid? Maybe the Judge suspected that RIM was capable of foul play – if so, it seems the Judge would have been right,

    I have to tell you that I also don’t find most patents to be black and white valid— most patents live somewhere in the gray zone of validity especially now after KSR and after the corrosive patent atmosphere created by Cisco, Cisco’s now defunct anonymous “public service” Patent Troll Tracker blog and its anti-strong American patent system cartel called Coalition for Patent Fairness and its other conspiracy partners— anyone in a position of power in the PTO or sitting on a district court patent bench can willy-nilly tank a patent, even a valid reexamined patent. It has become all so subjective that those lacking integrity can screw inventors, namely the little guys, at a whim.

  30. Why should RIM have paid NTP if it did not believe the patents were valid? It seems like RIM got a raw deal, as the judge should have stayed the trial until the Re-exam was done.

  31. Dear big (please excuse, I don’t like to call anyone a “hairy rat”),

    If we turn back time a little further, as memory serves, RIM declined to take a relatively low-cost license that it was offered by NTP!, and, some time later, RIM wound up paying the piper a hell of a lot more. Tough pootutie.

    So, please bear in mind that, in RIM’s mind, it (Rim) didn’t seem to give a “number two” or a “rat’s ass” about the Court shutting down millions of its (RIM’s) customers. Why, hell, RIM didn’t have to care—all it (RIM) had to do was “reach out” and touch scrupleless Dufas!

  32. If we turn our minds back to when this was all going on we can recall that RIM was facing a shut down of its system in the US, with potential losses in the tens of billions of dollars, the court was refusing to stay the court proceedings and the re-examinations were in process and were not going well for NTP.

    The PTO had every reason to be concerned and to urge its employees to move diligently on the re-examination. If the Court had shut down RIM and the USPTO had subsequently ruled that the NTP patents were invalid then I think that the patent system and the USPTO would have both been subject to scorched earth reform.

    It will be interesting to find out what impact, if any, the meetings between RIM and the USPTO had on the progress and outcome of the re-examination but the ultimate question is still whether the patents were valid. Even if NTP wins its current challenge to the current re-examination I assume that all they would get would be a new re-examination.

    If I were attacking the patents and NTP, or defending the USPTO, I would look very closely at Mr. Goodfellow’s work and the NDA he signed.

  33. Dear Lionel,

    I fully agree with Mr. Richard Belzer.

    And it is interesting to note that RIM, eBay, along with CISCO SYSTEMS, are members of the COALITION FOR PATENT FAIRNESS which, as I will comment more about later, is a Coalition/CONSPIRACY against the strength of American patent system. For example, the PTO has been infiltrated and its officials have been influenced ex parte and ongoing litigations may have been corrupted— sorting out these and other possible allegations will no doubt be of paramount importance to the American patent community, and would be lots of fun too if this unfolding saga wasn’t so nauseating— a blight on the American patent system created and endorsed by PTO management in league with the Coalition for Patent Fairness.

    Re:
    “… the real issue is whether NTP’s patents are valid as it seems there is a good chance they are not.
    “Don’t let your Dudas h@TE make you take your eye off the ball.”

    From Rim’s or NPT’s view, no doubt, you are right— their ball is all important regarding their conflicts over patents. However, in the major league patent playing field, I tend to agree with the implication made by my little pet friend when he posted this above:

    “Off with his head!, off with his head!
    Posted by: Just an ordinary white rabbit..(õ¿Q) | May 13, 2008 at 04:23 AM ”

    My white rabbit was of course referring to PTO Director Dudas. I agree with Mr. Greg Aharonian who wrote this above:

    “In general, Dudas better retain a good defense lawyer.
    Posted by: Greg Aharonian | May 13, 2008 at 03:12 AM ”

    Lionel, you were more that right when you wrote the following; I think it is a gross understatement:
    “BHR [California Congressman Howard Berman] is correct. If PTO higher ups violated legal or ethical duties by meeting with the CEO of RIM, then sure, they should face some consequences.”

    My guess is we may see jail time for PTO higher ups if and when this matter goes CRIMINAL — no doubt the Department of Justice will be investigating. All this and this debacle too:

    A) It was PTO Director Dudas who unlawfully attempted to steal Congressional authority to revamp and deconstruct the American patent system via horrendous Patent Reform.

    B) Director Dudas got sued; the result of such Patent Reform proposals and litigation (all of which wastes tons of PTO money), the Director was permanently enjoined from making this blatantly unlawful theft of authority from Congress.

    C) Director Dudas then has the brass balls to file a ridicule Appeal.

    So how does the PTO react to losing its bid to steal Congressional authority?
    Rather badly; by inventing the most petty reasons conceivable, the PTO, now out of apparent vengeance against patent attorneys and their inventor clients, REJECTS and RETURNS PENDING PATENT APPLICATIONS WHOLESALE.

    Unbelievable! Commenter “Cue the Black Helicopters” was right when he wrote above, “You can’t make this stuff up. Conspiracy theorists unite.”

    Here is a specific example of PTO alleged malfeasance, an excerpt from Professor Crouch’s link above, page 74+, in a April 24, 2006 RESPONSE TO FINAL OFFICE ACTION OF FEBRUARY 24, 2006 filed by NTP:

    “3. The PTO Engaged In Improper Communications with Third Parties That Are Not Reflected In The Record Of Decision for the Reexaminations.

    “Patent Owner respectfully traverses the above rejections on the basis that the Patent Office during the course of the reexaminations has engaged in a substantial number of non- record communications with third parties, including the third-party requester, which the Patent Owner contends have INFLUENCED THE OUTCOME OF THE REEXAMINATIONS. For example, there has been apparent collusion between the PTO and third parties in off the record communications wherein the PTO was influenced to issue a response in the reexaminations in an expedited time period in order to assist RIM in its litigation efforts against the Patent Owner. The non-record communications demonstrate actual bias against Patent Owner by persons participating in the decision-making process. Further, the existence of a substantial number of these communications indicates the reexamination process was not fair and impartial, but rather that THE OUTCOME WAS PRE-DETERMINED AGAINST PATENT OWNER.” (emphasis added).

    RIM, eBay, along with CISCO SYSTEMS and their COALITION FOR PATENT FAIRNESS, Just like PTO management, unlawfully favor horrendous Patent Reform, but I’ll discuss more about that later.

  34. With all due respect to the partisans who have taken one side or the other on the substance of NTP’s patents — about which I am blissfully ignorant — that issue is secondary rather than primary.

    The primary issue is whether PTO abides by established rules and procedures that everyone properly trained in the field understands, and thus is capable of generating reproducible outcomes when faced with similar fact sets. Getting the “right” answer in a single case irrespective of its financial stakes does not justify destroying the analytic credibility and public legitimacy of a process that is supposed to fairly manage hundreds of thousands of cases.

    The NTP response, irrespective of NTP’s motivations or interests, documents more than adequately to this former government employee’s satisfaction a pattern of criminal behavior by a surprisingly large number of people, any one of whom could have stopped it dead in its tracks just by refusing to participate and informing the PTO Inspector General of the conspiracy.

    That none of them appears to have done so suggests that PTO has become a RICO. With all due respect, fixing that problem ought to be the sole objective of patent reform legislation. Unless it is fixed first, all other reforms will not matter.

  35. BHR is correct. If PTO higher ups violated legal or ethical duties by meeting with the CEO of RIM, then sure, they should face some consequences. HOWEVER, the real issue is whether NTP’s patents are valid as it seems there is a good chance they are not.

    Don’t let your Dudas h@TE make you take your eye off the ball.

  36. “‘We view the letter as a complaint on behalf of a Florida-based business about delays in the cancellation process with a request for status information, rather than as an ex parte communication on the merits,’ the TTAB panel ruled in January.”

    link to law.com

    the platinum status update.

  37. “…it appears that NTP is trying to side-track the re-examination process.”

    How?

    Is it your position that Goodfellow created enabling prior art and NTP is withholding it under the guise of its NDA with Goodfellow?

  38. I said

    “The real issue is whether the NTP patents are valid.”

    That is the substantive issue. It is important that the PTO act ethically and within the law but it appears that NTP is trying to side-track the re-examination process.

  39. Bigger Boat, Mr. Berman’s letter states that both his questions and Dudas’ answers will be made part of the official record of the hearing. Unless the USPTO provides its responses under some sort of confidentiality, they should be obtainable under FOIA if not published outright.

  40. and if we cite in an IDS a long document which we have not read we are guilty of inequitable conduct

  41. A number of the other questions in the Berman letter are just as damning, suggesting withholding or spoliation of evidence in the Tafas v Dudas litigation.

    In the documents produced by the PTO in the litigation, the PTO “omitted” all studies of economic effect on the public, except raw paperwork numbers. The PTO *never asked* what the economic effect would be of the loss of patent protection and the cost of additional inequitable conduct litigation that would be occasioned by the continuation and claims rules.

    And the history of the PTO’s filings under the Paperwork Reduction Act suggest that even the paperwork estimates were “jimmied” to get to a politically-acceptable number, not a bona fide good faith estimate of paperwork costs.

    The PTO’s course of telling less than the whole truth are outlined at
    link to uspto.gov

    It’s clear that the PTO broke the law, either (a) by failing to do the economic analysis required by a number of laws, (b) did the analysis and destroyed the documents before the would have had to be produced in the Tafas litigation, or (c) had the documents and withheld them.

    It looks like Congress is now on to the PTO’s pattern of cooking the books, and is now demanding that the PTO produce its underlying data and models. We’ll see if there is any underlying data or models to produce, or whether the whole rulemaking was based on total fiction.

  42. Will the PTO’s responses to Mr. Berman’s questions (all of them) be made public?

  43. Word on the street is that the commissioner took a ride on the rimm jet. And that he maintains an appointment ledger outside the view of pto staff. With a powerful guy like Ken Delay going down for a couple of comp’ed rounds of golf, the jet rides and ‘factory tours’ sound much worse.

    IMHO, this is exactly why the PTO should not be doing reexaminations after a final judgment of the courts but if so at least give comity and full faith and credit to the court decisions. Its caustic – and the appearance of impropriety (even if not actual) leaps out of every case. Shame, shame, shame on the CAFC for translogic.

  44. Berman actually asked Dudas 19 questions. Berman’s letter is available at my Web site: link to bustpatents.com

    With regards to ex-parte communications, there is gossip that this happened as well with the squabble between Qualcomm and Broadcom.

    In general, Dudas better retain a good defense lawyer.

  45. You can’t make this stuff up. Conspiracy theorists unite.

    And remember … just because you’re paranoid doesn’t mean that they’re not after you.

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