CrackBerry Jam (Update)

A couple of people have e-mailed me concerning yesterday's post; these correspondents touched on a topic which The Economist's article discussed, but which I did not quote -- namely, the "worthiness" of NTP's position. As the article noted:

RIM is generally regarded as the victim of an injustice. Founded 21 years ago by two engineering students who still help run it, the company is being held for ransom by a “patent troll”. The monster emerging from under the bridge is an entity called NTP, which doesn't actually make or sell anything—it doesn't even have a website, for goodness sake. But it has hired a handful of lawyers to enforce its patents and in settlement talks this week, it was demanding almost 6% of RIM's sales in America until 2012 when its patents expire—about $1 billion. NTP's threat of a legal injunction to shut down BlackBerry unless it pays up is viewed as little short of extortion.

I agree with the article's conclusions that the validity and the "justice" of NTP's claims are separate issues. If I could digress for the second time this week into a tortured analogy, let's suppose that a particular town has a property law on the books to the effect that a homeowner may charge a fee to anyone who stops in front of his house. We can debate whether this is a good law: Are these fees deterring desirable public freedom of movement? Would the local real estate market be crippled if prospective homebuyers knew they could not collect these fees? We also can debate whether homeowners given this opportunity to charge fees should do so, but unless the law is changed or abolished, there is a definite right which could be enforced.

Again assuming that this hypothetical law is valid, a court considering a claim for fees should apply the law without considering extraneous matters. It should be immaterial, to mention a few examples, whether a particular homeowner-claimant is personally bothered by people stopping outside his house or is just looking for a quick buck, whether that claimant worked hard to raise the purchase money for the house or simply inherited it without working a day in his life, or whether the person assessed the fee knew of the town's peculiar law or the identity of the homeowner before whose house he stopped. The relative personal qualities of the homeowner-claimant and the person assessed the fee are similarly irrelevant; if the law is valid, it must be evenly-applied to all.

Granted, there are some lingering questions pending before the Patent and Trademark Office, concerning the validity of NTP's particular patent claims; not at issue (at least not yet) is the general validity of the patent system vis-á-vis the types of claims made by the NTP patents or the enforceability of valid patent rights against parties who infringe those rights.

[SECOND UPDATE]