My latest column for the Times Online (U.K.) is now up and deals with one academic’s recent prediction that employers would become targets of lawsuits based on their workers’ BlackBerry addictions. An excerpt:
…it made a perfect hey-Martha-look-at-this story, arriving amid the August silly season. As it happens, media people love to confess to their own BlackBerry addictions, which subtly reflect their own importance (people need to reach me day and night!) and in any case make a more agreeable topic of conversation than their gin, shopping or sex addictions….
All that having been said, it’s very unlikely that employers need worry about BlackBerry-addiction suits. Despite rumors to the contrary, American courts have not in fact been much inclined to let sunken-eyed Jane blame her addictions on deep-pocketed James. Compulsive gamblers’ suits have mostly flopped so far – as have those alleging videogame addiction – while the very modest success enjoyed by plaintiffs in fast-food lawsuits has come on other legal theories, such as ingredient mis-labelling.
Notwithstanding Ted’s debunking post of Aug. 25 (see also Sept. 5), the press continues to take this subject seriously, complete with its supposed legal ramifications. (Jay Akasie, “‘Addiction’ to BlackBerries May Bring on Lawsuits”, New York Sun, Sept. 7). Jonathan Adler leads a discussion at Volokh Conspiracy (Sept. 7).
Having represented patent-holding company NTP Inc. in its lengthy and much-criticized suit against BlackBerry maker Research in Motion (Mar. 4, etc.), the 250-lawyer Washington, D.C. law firm of Wiley, Rein & Fielding is going to be pocketing a contingency fee of roughly a third of the $612.5 million settlement, or $200 million plus. That exceeds the entire 2004 revenue of WR&F, which has heretofore been better known for its Washington regulatory practice than for plaintiff’s contingency-fee work. (“NTP lawyers laughing all the way to the bank”, Mobile Magazine, Mar. 17; Ashby Jones, Wall Street Journal law blog, Mar. 17).
“Although the U.S. Patent Office recently invalidated most of the patents at issue in the dispute, NTP still had the right to appeal. However, RIM was put in a tough position because [Judge] Spencer didn’t have to wait for a final decision on the validity of the patents before making his decision on the injunction. As a result, RIM was forced to pay up, said Ken Dulaney, a vice president and analyst with Gartner, while NTP was inclined to take what it could get.” (Ryan Kim, “BlackBerry users emerge from the legal briar patch”, San Francisco Chronicle, Mar. 4). Earlier coverage on this site: May 2, Oct. 11, Nov. 30, 2005, and Feb. 8, Feb. 25, 2006.
It’s not that NTP never turned its ideas into a product. The patent system doesn’t reserve success to owners of factories and laboratories; the guy living in his parents’ basement is allowed to sell his idea to people with those resources.
No, the problem here is simpler. There are too many bogus patents getting handed out.
Pegoraro also notes that RIM is hardly an innocent in the patent wars. The potential injunction has gotten loads of press coverage; Howard Bashman has roundups here, here, and here. See also Point of Law, Nov. 25, and Overlawyered’s Blackberry litigation coverage.
Columbia lawprof Tim Wu on patents as “Weapons of Business Destruction”. How easily can patent examiners be prevailed on to grant a patent application?
On Nov. 1, 2005, the PTO issued Boris Volfson of Huntington, Ind., Patent 6,960,975 for his invention of an antigravity space vehicle (according to the application, “the spacetime curvature imbalance … provides for the space vehicle’s propulsion”).
First BlackBerry, next eBay? As patent disputes threaten to shut down whole pillars of the electronic economy, the question becomes more urgent whether patent holders should be entitled to automatic injunctions against infringers. Abolishing the injunction entirely might be too radical, argues Fortune’s Roger Parloff; the better course may lie in giving judges more discretion. (“Pay Up — or You’re Done For”, Fortune, Dec. 12). More on the BlackBerry case: Oct. 11, May 2. And a news update: “Setback for BlackBerry maker”, Reuters/Money/CNN, Nov. 30.
“A court decision Friday renewed the possibility that service to BlackBerry wireless e-mail devices might be cut off for most users in the United States.” (Ian Austen, “Court Ruling in BlackBerry Case Puts Service to U.S. Users at Risk”, New York Times, Oct. 8). However, TigerHawk (Oct. 8) offers some reasons to think that might not happen. See May 2.