I Am Not A Patent AttorneyFriday, June 08, 2007
But I have to tell you, I agree with the statement issued by CTIA -The Wireless Association. that the United States International Trade Commission's announcement of an importation ban on handsets containing certain baseband processor, transmitter, and receiver chips and chipsets.In their statement they say, "The decision flies in the face of public policy that encourages the availability of broadband services and products, and could have the unintended effect of impairing the wireless industry's efforts to improve communications in areas such as public safety. Consumers should not have to pay the price for legal debate that could be settled by other means."
For those of you who have not been following the story, this is in reference to Broadcom's "victory" in convincing the ITC to rule against Qualcomm and order a ban on wireless phones that include certain chips made by Qualcomm that are part of an intellectual property dispute. According to the Broadcom statement on its Website, this ban is based on the May 2005 complaint by Broadcom on patent infringement by Qualcomm and the ruling by a U.S. Federal Jury on May 29th that Qualcomm was infringing on three of Broadcom's patents for which Broadcom was awarded almost $20 million in damages. And the wrangling goes on-the order states that existing phone models and PC data cards are exempt if they don't include Qualcomm's infringing chips.
Turning to the Qualcomm site, Qualcomm states that it disagrees with the decision and will seek a stay of enforcement in the Federal Circuit Court of Appeals. It goes on to point out that "the public industry that would result from the remedy imposed by the Commission is grossly disproportionate to any benefit flowing to Broadcom from such a broad enforcement of a recently-purchase patent." Qualcomm also states that Broadcom has never accused any wireless manufacturers or operators of infringement or any other wrongdoing.
I followed the entire NTP/RIM saga in the press, the threats of BlackBerry disruptions around the world and the settlement RIM had no choice but to enter into with a company that had no intention of doing anything but making money from someone else's products. There was no disruption of service and the matter was settled with a large amount of money flowing to NTP.
Intellectual property protection is important―companies spend a lot of money to develop technologies and products and have a right to protect what is theirs. However, the line blurs a little, for me, when the patent is purchased and then interpreted by the company that bought it. As I said, I am not a patent attorney, but I am not at all sure that a non-technical jury or judge can make objective decisions about the intricacies of patents, prior art and all that goes along with that. But such matters do belong in a court to be settled. Strong-arm tactics such as threatening to shut down BlackBerry service or invoking a ban on products that include Qualcomm chips that "infringe" on the patents reminds me of when I worked for a union shop as a non-union employee. The union went on strike and stayed out for months. Union members suffered and their families suffered. When the new contract was signed, I did some math and figured out that during the entire term of the new three-year contract, union workers would not even recoup the wages they lost during the three months they were on strike. Further, the companies that had been shut down during that period lost customers to other shops that were not unionized. When the dust settled, there was no winner.
Throughout history, the bigger a company gets, the more legal action is taken against it, merited or not. Just take a look at Microsoft and what it has had to deal with over the past decade.
The wireless industry is fragile at the moment and the world's economy is not what I would consider to be stellar, but the wireless industry is doing fairly well. To impose arbitrary sanctions on a company when there is litigation in progress, even after a ruling that is favorable to the other side, is counterproductive and in the end, the case will be settled, money will change hands and it will be life as usual.
That is the way our system is meant to work. Using tactics such as imposing an injunction or threatening to shut down wireless email around the world is simply counter-productive and, I believe, will ultimately hurt both parties equally.
I am not taking sides here, simply agreeing with the CTIA statement. This is not good for the industry or for our customers, and the fact that the decision is being made by the ITC, which is not made up of experts in this field, is just plain wrong!