As the former director of the European NoSoftwarePatents campaign I always find it shocking what kinds of patents the European Patent Office (EPO) grants despite the exclusion of "programs for computers as such" from the scope of patentable inventions according to Article 52 of the European Patent Convention (EPC).
Post-grant reviews often do away with those patents, but rarely ever on the basis of Art. 52 EPC per se. What typically happens is that the Federal Patent Court of Germany or other courts of competent jurisdiction categorize some claim limitations as "non-technical" and purposely ignore them in their novelty or inventiveness analysis. Whatever little remains then is often anticipated by, or at the very least obvious over, the prior art. But, unfortunately, efficiency gains (reduced data volumes, increased processing speeds, economic use of screen space etc.) often serve as an excuse for circumventing Art. 52 EPC.
Tomorrow the Munich I Regional Court will hold a first hearing in one of eight BlackBerry v. Facebook/WhatsApp/Instagram cases over a total of five different patents--all of them pure software patents. Patents on "programs for computers as such."
In March 2018, BlackBerry sued Facebook as well as its WhatsApp and Instagram subsidiaries in the Central District of California (= L.A., though geographically it would be SoCal). Facebook's VP of Litigation and Deputy General Counsel, Paul Grewal, issued the following statement:
"Blackberry’s suit sadly reflects the current state of its messaging business. Having abandoned its efforts to innovate, Blackberry is now looking to tax the innovation of others. We intend to fight."
The fact that Facebook still isn't paying BlackBerry any royalties is a good sign. Don't feed the failed-business-turned-troll!
Mr. Grewal used to serve as a United States Magistrate Judge in the Northern District of California. Over the years this blog mentioned him quite often, most notably in connection with Apple v. Samsung discovery and (un)sealing disputes as well as his mediation effort with Oracle and Google, a case that he realized just had to go to trial.
While there has been some media coverage of BlackBerry's U.S. litigation against Facebook (and a countersuit by Facebook), I haven't been able to google any articles on the eight Munich lawsuits, even though a couple of first hearings have already taken place there. This is the list of patents and first hearing dates:
EP1734728 on a "method and apparatus for switching between concurrent messaging sessions" (first hearing held on 01/10/2019)
accused functionality: showing two chat histories in parallel
EP1633114 on a "system and method for maintaining on a handheld electronic device information that is substantially current and is readily available to a user" (first hearing held on 01/17/2019)
accused functionality: automatically identifying user profiles containing partly identical data
EP1746790 on a "method of sharing an Instant Messaging history" (first hearing: tomorrow = 02/14/2019)
accused functionality: sharing messages from the chat history
EP1540495 on a "method and system for displaying group chat sessions on wireless mobile terminals" (first hearing: 02/28/2019)
accused functionality: displaying chat history while text is being edited
EP2339799 on an "IM contact list entry as a game in progress designate" (first hearing: 02/28/2019)
accused functionality: chatting during gameplay
This is another series of Munich cases in which Quinn Emanuel is asserting patents on behalf of a patent monetization-focused client against a Freshfields client. QE is representing Qualcomm against Apple in a series of German infringement cases, and Freshfields is defending Apple. Here, QE is suing Freshfields client Facebook on BlackBerry's behalf.
The BlackBerry company was named Research In Motion (RIM) when it filed the related patent applications. The irony is that "Research In Motion" is structurally similar to the names of many patent trolls, but the company was actually focused on making products at the time and itself the target of lawsuits brought by trolls, with the NTP case (settled for $612.5 million) being the most well-known example, while it's now named BlackBerry, but far more interested in patent monetization while its namesake products became pretty irrelevant a long time ago, thanks to the iPhone and Android.
I was in frequent contact with RIM in 2006, shortly after the costly NTP settlement that happened on the eve of what would most likely have been a U.S. injunction. I remember that they were the first company (of many) to tell me about the problems they had with Qualcomm, and that they were really happy about the Supreme Court's eBay v. MercExchange ruling (on patent injunctions) that year. But times have changed, and now they're asserting software patents against Facebook and its two most famous subsidiaries as if Article 52 of the European Patent Convention didn't exist.
In addition to suing companies like Facebook directly, BlackBerry engages in privateering. Last week, PatentlyApple reported on a declaratory judgment action brought by Apple against a troll named "Fundamental Innovation Systems" that wants (but hopefully won't get any) license fees from Apple over a dozen former RIM/BlackBerry patents.
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