Over the weekend both Motorola and Research In Motion sued each other. On Saturday, February 16, 2008, Motorola sued RIM in United States Federal District Court for the District of
Regardless of the merits of the case, or whether we ultimately agree that this is “trollish” behavior, it is clear that the first battle in what hopefully will become an epic saga providing fodder for commentary will be to determine which court will actually hear the case. It is foolish to believe that three different district courts will simultaneously waste their time conducting a patent litigation that will never reach trial. This is particularly true when we all know that if the parties do declare global nuclear war against each other and a trial occurs the Federal Circuit will just reverse whatever has been done by the district court and force everything to start over from square one. But I digress.
According to the Chicago Tribune, the dispute seems to have arisen due to the failure to renegotiate a 2003 cross-licensing agreement that expired at the end of 2007. RIM suggests that Motorola is trying to charge an unreasonably large royalty payment because Motorola cannot compete fairly in the marketplace. Does that make Motorola a patent troll? Does the fact that RIM refuses to pay make them a patent troll? Of course not! Only the little guy in a patent dispute could ever be considered a troll!
Of course I don’t think that Motorola suing RIM or RIM suing Motorola is trollish behavior. Each have assets that they have obtained. Coming with those assets is the right to prevent others from making, using, selling and importing devices that are covered by the exclusive rights owned by the other. But what I am trying to point out here is that there is a terribly hypocrisy that is being perpetrated by many of the elite corporations in the US, and being mindlessly picked up by the media and the United States Supreme Court no less. Now I am not suggesting that I expect the Supreme Court to understand patent nuances, decades of case law demonstrates that such a hope is nothing more than a pipe dream. Nevertheless, what I do expect is that those who actually own significant patent portfolios should get it. Is that to much to as for?
So why are Motorola and RIM not going to be chastised for being patent trolls? Because they make a product. It is as simple as that, and that is horribly sad. Those who acquire patent rights for the purpose of licensing, whether it be a research company, university or one who after acquires the rights cannot and should not be lumped into the category of patent trolls simply because they do not make a product. I am not going to profess much, if any, knowledge about constitutional matters, but doesn’t the whole point of the concept of equal protection mean that those who are similarly situated should be treated similarly? Of course it does! So why then should some patent owners be given the right to seek to license and ultimately enforce their patent rights with impunity while others are vilified?
Those who will argue that patent trolls are not similarly situated because they do not make products or contribute to the knowledge base by innovating can make that argument until they are blue in the face. It is simply a red herring, and they know it, or should know it. Large companies acquire smaller companies all the time. These smaller companies have patent assets, some of which will be used for licensing and enforcement purposes by the acquiring company, and rightfully so. But if that which makes a company a troll is that they are seeking to enforce or license rights that are not the fruit of their own innovation then why should they be able to engage in such acquisition and enforcement? You see right here is where those who vilify patent trolls usually walk away from the conversation, and I do mean literally. There is simply no response they can give. They want their cake and eat it too! Who doesn’t?
RIM is upset that Motorola wants to charge an exhorbitant licensing rate. Newsflash… that is Motorola’s right! If Motorola wants to charge a gazillion dollars to license their patents then there is nothing that anyone could or should be able to do about it. The fact that RIM wasn’t able to lock up a longer term licensing deal is not my fault, and it is certainly not Motorola’s fault. Given that RIM went to the brink of the NTP abyss and had no work around available moving forward and that they are now crying that Motorola wants a lot of money suggests to me that the problem is not the patent laws, but rather the RIM top management.
For now it is time for me to sit back and see what develops, but I know who I am rooting for already. Imagine the audacity of Motorola. How dare they seek to enforce their rights and ask for a lot of money! What is the world coming to?
And by the way RIM, asking to be paid a lot of money for a right that the law says they don’t even have to license to you does not mean that they are only doing this because they cannot compete fairly. By definition Motorola is competing fairly. They have a right that you want or need and they are going to force you to pay as much as they can get you to pay because they were the ones who innovated. Whether you like it or not, owning and exercising exclusive rights granted in a patent is not at all unfair. Go ahead an mount your public relations campaign, but don’t expec those in the know to fall for such rhetoric.