Lawmaker urges review of patent approval and re-examination processes

The Patent and Trademark Office failed to move quickly enough or devote adequate resources to addressing the validity of the patents at the heart of a row that is jeopardizing BlackBerry service, the chairman of the House Government Reform Committee said last week.

If patent re-examination requests from the BlackBerry maker -- Canada-based Research In Motion -- had been addressed more expeditiously, the controversy could have been resolved before it threatened a service that is critical to the government, wrote Rep. Tom Davis, R-Va., in a Jan. 27 letter to Jon Dudas, director of PTO.

The Arlington, Va., patent holding company NTP Inc. sued RIM in 2002 for alleged illegal use of patented software, and RIM in 2003 asked the patent office to re-examine NTP's patents. A preliminary ruling from the office rejected the validity of all of NTP's patents, and NTP said it plans to appeal that ruling in federal court.

"If somebody moves onto your front lawn and refuses to pay you, you have no choice but to seek assistance in removing them from your property," said Kevin Anderson, one of NTP's lawyers.

NTP filed a seven-page request with the patent commissioner last week, asking for the re-examination to be dismissed and charging that the agency failed to treat the company as it has other companies in similar situations.

Davis asked in his letter if reforms were necessary to speed up and improve patent processing.

"In today's fast-moving world, America's economy and our ability to compete in a global marketplace are dependent on an efficient and competent system to bring new technological developments to the consumer market," Davis said in a statement. "We consistently challenge the developing world to match our commitment to intellectual property rights. But are there refinements that we need to make, too?"

A PTO spokeswoman did not respond to requests for comment, and a RIM spokeswoman declined to comment for this article.

The agency's patent division has plans to hire about a thousand new employees a year through fiscal 2008 in order to reduce its backlog of patent applications.

Last week, the Supreme Court declined to hear the BlackBerry case after RIM asked the court to determine whether U.S. patent law could apply to devices operating partially outside of the United States, as the BlackBerry network does.

Both companies are expected to file briefs Wednesday with the Virginia Federal District Court presenting their case in anticipation of a Feb. 24 hearing when the companies will argue before U.S. District Judge James Spencer on whether he should issue an injunction shutting down BlackBerry service in the United States.

RIM said that in preparation for a potential injunction, it has prepared a software workaround. But if a shutdown is ordered, it would be impossible to implement an exemption for government users and others deemed essential users, RIM has stated.

According to Eric Stange, president of the Defense and Homeland Security practice at Accenture, a management and information technology consulting company, high-level government executives rely daily on the BlackBerry devices, and a shutdown of the system would cause significant upheaval.

"I've seen a three-star Army general on stage checking his BlackBerry," said Stange, who has worked on homeland security and defense issues for six years. "I can't say for sure if [Homeland Security Department Secretary Michael] Chertoff uses them, but people on his staff use them."

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