Washington (DC) - In a long and scathing retort, responding to yesterday’s surprise issuance by the US Patent and Trademark Office of a final rejection of two claims relating to one of the patents allegedly infringed upon by Research in Motion, Ltd., the makers of BlackBerry, NTP Ltd., the patent holder and plaintiff, accused the USPTO of favoritism towards RIM, and in so doing, violating federal law.
The statement, which omits explicit mention of the fact of the Patent Office’s invalidation, which TG Daily confirmed with the USPTO yesterday, notes what NTP calls "irregularities" in the Office’s behavior. It alleges that the Patent Office refuses to abide by the findings of the US Court of Appeals, stating, "Under the Patent Office’s current interpretation, the meaning of the NTP’s patent claims have been impermissibly stretched so broadly as to create a ’rubber patent.’" By not following the meaning of NTP’s patent claims as the Appeals Court interpreted them, NTP says, the patent office is re-interpreting its own re-interpretation. "A ’rubber patent’ is contrary to basic fairness," NTP continues. "It violates the Circuit Court of Appeals’ definitions relating to the patent claims and this results in an impossible and illegal standard for reexamination of any patent."
|The key page from the rejection notice the USPTO mailed to NTP, Inc., yesterday|
As NTP’s allegation continues, the re-examination itself gives RIM a "second bite at the apple," borrowing a phrase from law school. It then explicitly accuses the Patent Office of "violating laws passed by Congress and specifically defying Congressional statements that there should be ’no second bite at the apple’ during reexamination if a litigant has lost in court already."
These allegations appear several paragraphs after an initial statement from NTP, which themselves flatly deny that any patent invalidation took place at all yesterday, blaming RIM for misleading the press to that end. "Since the federal court system has the final ’say’ in the matter," NTP writes, "RIM’s assertions that the patents have been invalidated are flatly wrong. The validity of the patents is not affected by preliminary PTO office actions."
However, photocopies of the public document mailed to NTP’s attorneys by the USPTO, were posted to that office’s Web site this morning. One key page clearly indicates which two claims were rejected, with an X appearing in the box for claim rejection. At the top of the page, another X appears in the box beside the phrase, "This action is made FINAL."
A statement released yesterday afternoon by RIM asserted that the Patent Office had rejected all nine of NTP’s claims regarding the patents under dispute, "in initial and second Office Actions," the RIM statement reads. However, the RIM statement did go on to characterize those initial rejections as though they were final rejections that could survive appeal.
The NTP statement this afternoon closes by accusing the Patent Office of having treated NTP peculiarly unfairly and unequally, specifically by having waited during the period of the original inventor’s illness, NTP claims, for him to have actually passed away before beginning its final review of NTP’s patents. NTP claims it was unfair for the USPTO to do this, now that the inventor and original patent filer, Thomas J. Campana, is no longer alive to defend himself.
RIM spokespersons were contacted earlier today by TG Daily, and have not yet returned comment. No further actions by the Patent Office have been indicated today, based on information from its Web site. A hearing on whether a stay on a District Court injunction banning RIM from providing BlackBerry service to the US, remains scheduled for tomorrow.