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IT Confidential: Notes From The Patent Underground

Was the recent BlackBerry case an aberration, or a sign of things to come?
Oct. 12, 2007. This will be my last entry for a while. The pencil nub I'm writing with is almost gone, and it's getting dark. Supplies have dwindled. Government officials have been in emergency meetings for several days but, fearing attacks by anti-patent terrorists, no one knows where they're meeting and there's been no news about their progress. Can it really be only little more than a year since the BlackBerry case precipitated the patent crisis? That dispute seems so trivial now. The judge was only following the law in issuing the injunction, we know that, and who could have foreseen the consequences? After paying $612 million to settle a lengthy patent dispute, Research In Motion, the Canadian company that developed and marketed the handheld BlackBerry computer, was sued again by Visto for potentially violating Visto's wireless E-mail patents. RIM countersued, but the judge sided with Visto and issued an injunction to stop the sale of BlackBerrys. That cut off RIM's revenue stream, crippling the company. RIM executives appealed to Canadian government officials for help. Canada demanded that its patent inspectors be allowed into the U.S. Patent and Trademark Office to examine its files. The U.S. government refused. When several Canadian electronics retailers were jailed for attempting to smuggle BlackBerrys into the United States, Canada broke off diplomatic relations and instituted trade sanctions, blocking the flow of wood, salmon, and hockey players to the United States. The American Civil Liberties Union, representing 100,000 lawyers, filed a class-action lawsuit against the Patent Office, claiming its authority is unconstitutional and seeking to invalidate all U.S. patents, especially the one prohibiting use of BlackBerrys. Then disaster struck. An obscure intellectual property firm, fearing loss of its capital investment, filed suit against Google over a patent the firm had acquired recently that covered all processes conducted over the Internet, including search. A confused judge hastily granted the firm's request for an injunction, effectively shutting down the Internet. Google countersued and launched a sweeping enforcement of its entire patent portfolio, including wireless, satellite, instant messaging, and E-mail technologies. Because Google's patent litigation threatened features in Microsoft's operating systems and applications, Microsoft retaliated by launching its own intellectual property assault with lawsuits involving every one of its 5,000 patents. IBM felt compelled to protect its intellectual property war chest and launched a massive wave of litigation covering all 40,000 of its patents. The resulting injunctions, issued by an ill-equipped and overwhelmed judiciary, shut down utilities, telecom companies, airlines, banks, hospitals, manufacturers, credit card companies, and retailers. Now we wait, in the cold and dark. The United Nations has sent in peacekeeping troops to help maintain order. Those patent judges who haven't sought refuge in Mexico are attempting to review the mountain of patent litigation on a case-by-case basis, hoping to get some companies up and running again soon. God help us. I think that's predicted in the Book of Revelation. If you have your own doomsday patent scenario--or an industry tip--send it to [email protected] or call 516-562-5326.