Wi-LAN Sues RIM: Two Canadian Firms Duke Out Patent Fight... In East Texas, Of Course

from the ah,-east-texas dept

Turns out that Canadian patent holders love East Texas just as much as American companies. The news today covers how Canadian wireless patent holder Wi-LAN has now sued RIM in East Texas, concerning patents on mobile handheld devices. RIM is also a Canadian company (and also heavily involved in patent disputes). Isn't it great to see two Canadian firms choosing East Texas as the best place to fight over patents?

Wi-LAN is a company that we've discussed in the past. It worked on some technologies for wireless networks, but was unable to successfully market products commercially. In other words, it failed in the market. So, instead, it started focusing on aggressively enforcing its patent portfolio, suing a ton of companies who did anything wirelessly. As with so many public companies that turn into patent hoarders these days, it also has a very vocal and active set of day traders who will defend it to no end (see the comments on that link above).

RIM, of course, is also a well known company that we've written about many times. The maker of the super popular Blackberry wireless device, it became an aggressive filer of patent infringement lawsuits. That, in turn, led some patent holders from a non-practicing entity called NTP to sue RIM over some other patents -- eventually leading to a $612.5 million payout by RIM (despite the fact that NTP's patents were found to be invalid).

This latest case seems like it ties together so many different stories. You've got a failed business trying to use its patents to hold back the company that won; it's got Wi-LAN who has been aggressively trying to tax just about every wireless innovation with its patents; it's got RIM, who has been on both sides of a ton of questionable patent lawsuits; and it all takes place in East Texas. Who could ask for anything more?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Xanius, Jun 20th, 2008 @ 4:45pm

    I could ask for more...

    I could ask for a jousting tournament on ponies between the lawyers to decide the case.

     

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  2.  
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    Anonymous Coward, Jun 20th, 2008 @ 4:46pm

    East Texas

    I guess we need to remind those damn Canadians "Don't mess with Texas!"

    I wonder if there is any way to get this bullshit kicked outta court? If they tried that bullshit here in Houston, I bet the judge would get up himself to slap the shit outta all the lawyers

     

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  3.  
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    Little Techdirt Lemming Punk, Jun 20th, 2008 @ 5:29pm

    Meh ... let them kill each other. I do not care.
    I do not need any wireless devices they claim ownage over.
    And I refuse to pay unearned tolls to slackerz.

     

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  4.  
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    Devil's Advocate, Jun 20th, 2008 @ 6:43pm

    Not that uncommon...

    Canadian companies can hold US Patents. So it's not uncommon to see them litigated in US court. Hell, many companies in the Canada hold a ton of various bureaucratic elements in the US. Most large companies have Trademarks, patents and copyrights held in the US.

    However, the whole "East Texas Jackpot" ruse is getting annoying. Someone should really conduct an investigation into whether or not some of those Judges are getting kickbacks from Patent Hoarders.

     

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  5.  
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    angry dude, Jun 20th, 2008 @ 8:49pm

    horseshit

    The lawsuit is about US patents and can be brought only in US jurisdiction

    EDT has been (so far) one of the most qualified and speedy courts for resolving patent disputes in US
    EDT is used to resolve patent disputes not only by small plaintiffs but by major multinational corps like Cisco
    (Cisco regularly sues competitors while being sued by small patent holders all in the same EDT district)
    But lately EDT seems to slow down so the focus might shift to some other districts

    Mike Masnick has no clue at all

     

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  6.  
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    angry dude, Jun 20th, 2008 @ 8:58pm

    more horseshit

    "In other words, it failed in the market"

    Mikey, don't you see the difference between "failed in the market" and "being robbed" ?

    Like if you carry a hundred dollar bill in your hand and I approach you in the street, kick your ass and take your money from you, some observer might say that you failed to keep your money, right ?

     

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  7.  
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    Bad Analogy Guy, Jun 20th, 2008 @ 9:02pm

    Re: more horseshit

    Wow - and I thought I was bad ... wtf ?

     

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  8.  
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    Anonymous Coward, Jun 20th, 2008 @ 9:31pm

    I could ask for this to never happen. But that would be insanely stupid.

     

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  9.  
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    The Chosen One, Jun 20th, 2008 @ 9:40pm

    All of east Texas is gay, just like the patent trolls they support.

     

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  10.  
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    Anonymous Coward, Jun 21st, 2008 @ 12:07pm

    "...(see the comments on that link above).)

    Interesting, albeit time consuming, ebb and flow of comments. Seems to me they could be titled "Wi-LAN Supporters v. Michael "Jeremiah Wright" Masnick". One thing came through loud and clear. M"JW"M has strong views about the patent system, but to some degree they are predicated on a somewhat limited familiarity with how patent prosecution before the USPTO is actually conducted. I know, the rejoinder will be "What makes you think I am not?" In response all I can say is that one needs to look no further than the many responses that in essence state "The darn thing was obvious and should never have issued. NTP somehow bamboozled the USPTO into granting an overreaching patent(s), and we are the less for this because innovation has been stifled." Of course, there is no factual analysis of the actual claims demonstrating this to be the case, other than the District Court and CAFC decisions upholding the patents and determining they had been infringed. BTW, a petition for a writ of certiorari was filed with the Supreme Court by RIM, which petition was denied by the Court.

    "...NTP's patents were found to be invalid)."

    Not quite accurate. Those proceedings are ongoing, with most recently an investigation begun based upon allegations that senior managers at the USPTO met privately with RIM prior to the initial decisions being made on the reexams requested by RIM. In a reexam this is an absolute "no-no", and if the allegations are show to have merit then RIM could well find itself in a world of major hurt.

    Will NTP come out of the reexams with its patents intact? In all likelihood some of the claims will ultimately disappear, some will remain as is, and some will be amended to overcome any pertinent published prior art disclosing salient features of such claims. The patents will be bloodied and bruised, but they will still have portions that live on to be asserted another day against other alleged infringers.

     

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  11.  
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    Little Techdirt Lemming Punk, Jun 21st, 2008 @ 1:05pm

    Re:

    AC -> "In all likelihood some of the claims will ultimately disappear, some will remain as is, and some will be amended to overcome any pertinent published prior art disclosing salient features of such claims. The patents will be bloodied and bruised, but they will still have portions that live on to be asserted another day against other alleged infringers."

    And this is based upon what, your opinion I suppose.

    Sounds like you are a supporter of the patent system as it is today, any patents out there that you think should not have been granted ? I'm guessing the answer to that is no. What do you think about the infamous one click patent ?

     

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  12.  
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    Anonymous Coward, Jun 21st, 2008 @ 5:46pm

    Re: Re:

    "...based upon what..."

    30 years as a lawyer who has studied how the law works. Remember, I used the word "likelihood". There is always a possibility a patent can be invalidated and no amount of amending can resurrect it. Experience informs me, however, that this is not very often the case.

    "...supporter of the patent system..."

    This is actually something I have continually thought about my entire career. For example, far too many inventors and attorneys alike are prone to use the system even when business circumstances dictate that there are better, more cost effective ways to achieve the same goals. Moreover, while most inventors are like proud parents (Isn't this the most beautiful child you have ever seen?!?), there are many lawyers who for whatever reason seem unable or unwilling to inject business reality into the situation.

    "...any patents out there that you think should not have been granted?"

    I am sure there are, but this does not mean that in the case of the work by Mr. Campana and his co-inventors I am prepared to proclaim they are invalid without having closely examined the applications and their respective prosecution histories.

    "What do you think about the infamous one click patent?"

    I have never read the patent or any court decisions associated with it, so I really do not have an opinion.

     

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  13.  
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    Little Techdirt Lemming Punk, Jun 21st, 2008 @ 8:37pm

    Re: Re: Re:

    Ok. And btw, thanks for answering, I didn't really expect it.

    I'm curious, of the patents that should not have been issued do you think any of them are being abused for profit ?

    Note, I mentioned the one click patent because it is possibly the poster child for patent abuse.

     

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  14.  
    identicon
    Anonymous Coward, Jun 22nd, 2008 @ 10:17am

    Re: Re: Re: Re:

    Wow, ok, I think I am going to make a T-Shirt that says "I hate Mike Masnick!" and sell them, I bet I would make a FORTUNE. I mean seriously, I see these comments all the time ragging on him, yet people continue to read the articles anyway. I think he is just popular to hate. WAY TO GO MIKE!!!

     

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  15.  
    identicon
    Anonymous Coward, Jun 22nd, 2008 @ 3:35pm

    Re:

    what did you say, i couldnt understand you!
    perhaps if you removed the dick from your mouth...

     

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  16.  
    identicon
    Anonymous Coward, Jun 22nd, 2008 @ 8:40pm

    Re: Re: Re: Re:

    "I'm curious, of the patents that should not have been issued do you think any of them are being abused for profit?"

    This is a fair question, but candidly speaking it is not one that I can readily answer. Reasonable minds can differ about whether a particular circumstance is abusive or not abusive.

    I can say, however, that there are two types of conduct I find "abusive". The first is a company who "blows off" a patentee without even so much as even lifting a finger to determine if the patent has any merit. The second is the relatively recent phenomena of investment/equity groups treating patents like stocks and bonds.

    As for the "One-Click" patent, I am not at all sure it exemplifies abusive conduct. The patent was prosecuted by a highly respected law firm in Seattle, it was examined and eventually passed to issue by two patent examiners at the USPTO, and its assertion against B&N did not exhibit anything out of the ordinary in matters involving two businesses. Perhaps it should never have issued. I do not know for sure because I was not the one who considered the application, compared its claims against the then known prior art, and then determined that a patent should issue.

     

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  17.  
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    JG, Jun 22nd, 2008 @ 10:30pm

    Please NOT AGAIN! Heard everything, read everything... (Please read all the comments in response to the stupid article written by Mike here... when Wi-LAN sued the gang of 22!. ) After everything is said and done, there is usually more said than done!

    I suggest we all wait and see what the courts decide. If Wi-LAN has a valid claim(s), let the professionals determine... you guys - amateurs -- can say all you want... NO BODY CARES. The BIG Guys (THIEVES) MUST PAY! It's about time.

     

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  18.  
    icon
    Mike (profile), Jun 23rd, 2008 @ 1:05am

    Re:

    Interesting, albeit time consuming, ebb and flow of comments. Seems to me they could be titled "Wi-LAN Supporters v. Michael "Jeremiah Wright" Masnick".

    When trying to get people to take you seriously, referring to someone you dislike by a mocking name designed to insult, it makes your argument a lot less credible. If you have something convincing to say, say it. If you just want to insult me, well, then your credibility goes away quickly.

    In the meantime, I love the fact that whenever confronted on the economic impact of these decisions, you switch to the legal details. That's a neat lawyer's trick, but does little to explain how these outcomes actually serve the constitutional mandate of promoting the progress.

    Of course, there is no factual analysis of the actual claims demonstrating this to be the case, other than the District Court and CAFC decisions upholding the patents and determining they had been infringed. BTW, a petition for a writ of certiorari was filed with the Supreme Court by RIM, which petition was denied by the Court.

    Having a district court and the CAFC side with a patent holder is hardly anything new. Nor is the Supreme Court rejecting a request on a case like this one, which has little to no constitutional questions, nor is it dealing with a split in the circuits. That doesn't mean very much.

    Not quite accurate. Those proceedings are ongoing, with most recently an investigation begun based upon allegations that senior managers at the USPTO met privately with RIM prior to the initial decisions being made on the reexams requested by RIM. In a reexam this is an absolute "no-no", and if the allegations are show to have merit then RIM could well find itself in a world of major hurt.

    You're using a procedural screwup to distract from the fact that the claims were rejected...

    Will NTP come out of the reexams with its patents intact? In all likelihood some of the claims will ultimately disappear, some will remain as is, and some will be amended to overcome any pertinent published prior art disclosing salient features of such claims. The patents will be bloodied and bruised, but they will still have portions that live on to be asserted another day against other alleged infringers.

    That may well happen -- and if it does it will be another example of the patent system being abused to reward losers at the expense of innovators.

     

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  19.  
    icon
    Mike (profile), Jun 23rd, 2008 @ 1:07am

    Re: Re: Re:

    30 years as a lawyer who has studied how the law works. Remember, I used the word "likelihood". There is always a possibility a patent can be invalidated and no amount of amending can resurrect it. Experience informs me, however, that this is not very often the case.

    And what's your experience with economics?

     

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  20.  
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    Mike (profile), Jun 23rd, 2008 @ 1:09am

    Re: Re: Re: Re: Re:

    The first is a company who "blows off" a patentee without even so much as even lifting a finger to determine if the patent has any merit.

    Can I ask your opinion on independent invention? We all know that independent invention is not a defense under the law, but a company in the midst of innovating may "not lift a finger" because it thinks (incorrectly, by law, but reasonable from a common sense standpoint) that since it came up with the idea on its own, "lifting a finger" isn't necessary.

    The second is the relatively recent phenomena of investment/equity groups treating patents like stocks and bonds.

    I agree that this is abusive.

     

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  21.  
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    Ferin, Jun 23rd, 2008 @ 5:04am

    How many people?

    I wonder how many people live within the bounds of the rocket docket's jury pool? It'd be interesting to see if the population there is small enough that the potential jury pool might be entirely disqaulified simpyl for having served through so many related cases.

     

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  22.  
    identicon
    Anonymous Coward, Jun 23rd, 2008 @ 6:39am

    Re: Re: Re: Re: Re: Re:

    "Can I ask your opinion on independent invention?"

    I have two opinions concerning this question. First, I do believe that some sort of an accommodation should be incorporated into our patent laws that is more comprehensive than the narrow infringement defense contained in Section 273 of our patent laws.

    Second, not "lifting a finger" is just plain dumb. As a former corporate counsel for a multi-national, Fortune 20 company, I can assure you that all such "claims" that came across my desk were duly examined for merit and the person asserting such a claim duly apprised of the corporation's position following such an examination. I can recall one incident where the corporation was in fact infringing a patent, but then again had been manufacturing the infringing product for over 15 years before the patent application was even filed (in all fairness to the patentee, the product was incorporated into a military weapons system and this fact was unlikely known to the patentee given the nature of the product). Thus, it was clear that the patent was invalid as a matter of law. Interestingly, one of the references cited by the USPTO during the prosecution of that patent was a patent obtained by the corporation many years earlier. Upon examining the patentee's products it was determined that his products were infringing the corporation's patent. Of course, the corporation had no interest in asserting its patent against this patentee, but by noting this "turn of events" in a letter the matter disappeared immediately. In fact, to his credit the patentee sent letters to all companies he had contacted telling them to ignore his letters because it was clear his patent was invalid.

     

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  23.  
    identicon
    Anonymous Coward, Jun 23rd, 2008 @ 7:19am

    Re: Re:

    "When trying to get people to take you seriously, referring to someone you dislike by a mocking name designed to insult, it makes your argument a lot less credible. If you have something convincing to say, say it. If you just want to insult me, well, then your credibility goes away quickly."

    No insult was intended, only a feeble attempt at humor given my perception that your comments on that incredibly long thread seemed at times to have almost a religious fervor. You have my apology.

    "...switch to the legal details."

    Simply because the only places where the facts underlying the NTP v. RIM case were comprehensively developed were the Federal District Court and the Court of Appeals for the Federal Circuit.

    "You're using a procedural screwup to distract from the fact that the claims were rejected..."

    Hardly. The USPTO initially rejects virtually everything presented to it where new prior art is involved. As of today the status of the numerous reexams is that they are still up in the air and no final decision has been rendered.

    "That may well happen -- and if it does it will be another example of the patent system being abused to reward losers at the expense of innovators."

    Now you may understand why I mentioned to a prior poster that what is abusive and what is not is a matter on which reasonable minds can differ. NTP is a poor example of abusive behavior given that it initially approached RIM with a relatively modest proposal. It was RIM who ultimately paid the price for its legal intransigence...something that was totally unnecessary. It has no one to blame but itself for making less than optimal business and legal decisions.

    A much better example of what may be abusive behavior is contained in your most recent article concerning the person who created a myriad of shell companies. That individual and his various companies have apparently contributed nothing to the innovation process.

    Do try and bear in mind that an "invention" can cut across numerous separate and distinct industries. Your definition of innovation embraces the spectrum of activities from "idea" to "market introduction of a product". In such situations I have been able to use patents, know how, show how, technical expertise, etc. to facilitate the creation of new companies in distinct industries to assist those new companies to likewise engage in the innovation process, with those companies having the distinct advantage of being able to take the developed invention and complete the innovation process. In the case of one of these companies I was quite pleased to learn that the invention, coupled with the company's execution of the business plan (which the inventing entity assisted happening) recently was awarded an Emmy for the product it has introduced into the marketplace that relates to HD TVs. Who knows. Maybe you have such a TV in your home right now.

    Years ago Texas Instruments embarked on a "let's sue 'em" approach that netted it several billion dollars. To me this was shortsighted, if for no other reason than it ticked off a bunch of companies who likely felt coerced. Of course, what goes around comes around. I much prefer and advocate an approach of establishing mutually beneficial business relatioships calculated to support the innovation process as you seem to define it, with the patentee's support being limited to handling the technical side of the process and the new company handling the business, manufacturing and marketing side of the process.

     

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  24.  
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    angry dude, Jun 23rd, 2008 @ 8:16am

    hogwash

    "A much better example of what may be abusive behavior is contained in your most recent article concerning the person who created a myriad of shell companies. That individual and his various companies have apparently contributed nothing to the innovation process."

    Perhaps you should know that creating shell companies is the standard business practice used not only by independent inventors but also by large corporations
    I belive Intellectual Vnetirs creates Delaware crporation or LLC for each new patent portfolio they acquire
    ASbsolutely nothing wrong with shell companies
    Just a convenient way of handling IP assets

    "I much prefer and advocate an approach of establishing mutually beneficial business relatioships calculated to support the innovation process as you seem to define it, with the patentee's support being limited to handling the technical side of the process and the new company handling the business, manufacturing and marketing side of the process."

    On which planet do you live, dude ?
    Just where on Earth did you see that kind of "mutually beneficial business relatioships" ?
    All I see is an abusive use of tremendous marketing power and inlimited financial resources by large multinational corporations to destroy smaller players in the patent marketplace, This includes intential filing and prosecution of miriads of junk patents by companies like MShit and Intel to dilute the value of a few truly valuable patents held by small patentees

    it's a dog-eat-dog world out there by corporate design
    Gotta love it dude

     

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  25.  
    identicon
    Anonymous Coward, Jun 23rd, 2008 @ 9:05am

    Re: hogwash

    "Perhaps you should know that creating shell companies is the standard business practice used not only by independent inventors but also by large corporations
    I belive Intellectual Vnetirs creates Delaware crporation or LLC for each new patent portfolio they acquire
    ASbsolutely nothing wrong with shell companies
    Just a convenient way of handling IP assets"

    Do not disagree, but my comments meant to reflect upon the specific individual noted in the new article posted today. In fact, I have previously advocated company specific creation of independent entities to hold IP rights, but in the situation I faced it was due to certain peculiarities associated with contracts with federal and state governments. The reasons are much to detailed for a blog "sound bite", but their essence was to curtail governments competing directly with the private sector in domestic and international markets by replicating and selling the products produced by the private sector. If you understand the concept of sales under the FMS provisions of the Arms Export Control Act you will immediately understand what I mean.

     

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  26.  
    identicon
    just plain bill, Jun 23rd, 2008 @ 9:09am

    working at rim

    I wish I worked for RIM. Then I could tell everyone how I loved my RIM job

     

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  27.  
    identicon
    Anonymous Coward, Jun 23rd, 2008 @ 9:16am

    Re: hogwash

    On which planet do you live, dude ?
    "Just where on Earth did you see that kind of "mutually beneficial business relatioships" ?
    All I see is an abusive use of tremendous marketing power and inlimited financial resources by large multinational corporations to destroy smaller players in the patent marketplace, This includes intential filing and prosecution of miriads of junk patents by companies like MShit and Intel to dilute the value of a few truly valuable patents held by small patentees."

    Not every business situation involves a "Big Guy" versus a "Small Guy". Joint ventures, teaming agreements, cooperative development and marketing agreements, and an almost infinite variety of other such agreements are commonplace...and these agreements oftentimes involve "Big Guys" and "Small Guys" working together on a common goal.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Payday Loans, Aug 7th, 2009 @ 9:08am

    Companies like MShit and Intel will definitely dilute the value of a few truly valuable patents held by small patentees, so its not fair.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Cash Loans, Apr 21st, 2010 @ 6:34am

    Very good points raised here.

     

    reply to this | link to this | view in thread ]


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