Wednesday, May 8, 2013

Canadian licensing firm WiLAN requests U.S. sales ban of BlackBerry's latest, LTE-capable devices

BlackBerry (previously known as Research In Motion) believes some injunctions based on standard-essential patents can be "procompetitive" (see 1, 2, 3). It promotes the -- sorry to say so -- wacko idea to curb patent litigation between major operating companies in this industry by allowing anyone who holds SEPs to seek sales bans over those in order to deter assertions of non-SEPs. The latest one became publicly available today: an amicus curiae brief basically supporting Google against Judge Posner (it's not worth further analysis here because it's consistent, in substance and quality, with BlackBerry's/Research In Motion's prior submissions, but I've uploaded it to Scribd for those who care to read it regardless). Maybe that company will realize just how bad an idea it is to promote SEP-based hold-up if the latest generation of its own devices is deprived of its 4G (LTE) capability by an injunction another Canadian firm is seeking in the United States: WiLAN today announced its filing of a patent infringement case against BlackBerry in the Southern District of Florida over a patent related to the 4G (LTE) standard.

The patent-in-suit is U.S. Patent No. 8,274,991 on a "protocol for allocating upstream slots over a link in a point-to-multipoint communication system". The exemplary accused product in this case is the BlackBerry Z10 as used on the AT&T network. Paragraph 17 of the complaint contains a standards-based infringement allegation:

"The use of Defendants' LTE Products for uplink transmission over an LTE network results in performing a method for obtaining uplink transmission bandwidth as claimed in the '991 Patent. Upon information and belief, the protocol for making uplink bandwidth requests is a built-in capability that is automatically executed when a user uses Defendants' LTE Products to communicate over an LTE network."

The induced-infringement theory basically says that by encouraging end users to use LTE, BlackBerry instructs them to infringe the patent-in-suit.

In one of its prayers for relief, WiLAN is seeking "{b]oth preliminary and permanent injunctions against Defendants and their officers, agents, employees, attorneys, and all persons in active concert or participation with them, prohibiting infringement of the '991 Patent".

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