No Predicting Outcome on BlackBerry Patents?

Wednesday’s news that the United States Patent and Trademark Office invalidated several claims of a key patent that NTP Inc. had successfully enforced in court against Research In Motion Ltd. had at least one patent attorney musing about the insanity of it all. Responding from his BlackBerry to a request for comment, patent litigator Erik Puknys, a Palo Alto-based partner with Washington, D.C.’s Finnegan Henderson Farabow Garrett & Dunner, said he doubts any attorney not involved in the case could predict its outcome. Puknys said he can’t believe any patent lawyer would devote the time necessary to really understand all the possible outcomes.

“Our clients are keeping us too busy with paying work, and none of us is so nerdy that we’ll spend that much leisure time reviewing all the pleadings,? he wrote. With regard to the patent re-examination, he said, not even patent attorneys would have the time or the interest to review the five patents involved in the case.

“There are five patents involved and at least one patent has more than 650 claims and two others have more than 200,? he said. “That’s an enormous burden on the PTO. And while you’ll never hear me criticize the PTO, no one can reasonably predict the outcome of such a complex reexamination.? But if journalists can’t rely on outside observers to educate them on the issues, should they trust the parties involved to do it? Puknys doesn’t think so either.

“Both sides are spinning the case hard right now,? he said. “NTP’s injunction threatens to kill the goose that lays NTP’s golden eggs and RIM has announced it has a redesign in the works, but it’s got to be quite expensive or problematic redesign — otherwise they’d roll it out, right?? Still, Puknys can’t resist placing his own bet: “I will not lose my BlackBerry — the parties will settle somewhere north of $500 million or the PTO will drive a stake through the patents. If I’m wrong, however, NTP’s going to have to pry my BlackBerry from my cold, dead hands.?

Xenia P. Kobylarz


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