Research In Motion Faces Potential US International Trade Commission Investigation
By: Ainsley Brown
Imagine being told that you could no long buy a BlackBerry or being told that the services of the one you already own will be restricted, just imagine. Think it can’t happen; well think again for this has now entered the range of possibility in the United States.
The Canadian company, Research In Motion Ltd (RIM), the maker of the ubiquitous BlackBerry, could be banned in the US if it receives and adverse ruling by the International Trade Commission (ITC). Please, please don’t panic, your BlackBerry is still safe, please note I said “if”.
Let me be perfectly clear here, it is only a slim possibility, for now, as the ITC has to date not initiated an investigation of RIM. However, there has been a complaint made to the ITC by Prism Technologies LLC (Prism) that RIM has infringed its intellectual property.
The complaint made by made by Prism is its latest move to force a settlement from RIM. The two are embroiled in hotly contested patent case since last year in federal court in Nebraska were Prism claims that RIM through its BlackBerry has violated its patents held on desktop software and servers and an authentication system. In September of this year Microsoft settled its portion of the case with Prism.
In filing the ITC complaint what Prism is in effect trying to do is force RIM to settle the patent infringement case. But how, you might ask.
Well there are two reason and all of them having to do with the characteristics of the ITC. The ITC is a quasi-judicial federal agency set up to investigate and enforce US laws as they pertain to unfair trade practices. The agencies mandate extends from anti-dumping and countervailing duties to patent infringement.
The first of the two reasons is that the ITC unlike in a lawsuit, which could drag on for year, can complete its investigation in about 15 months. If an investigation is actually launched, RIM and its lawyers will have to weigh on the one hand the probability of an adverse finding with the finding surviving the subsequent appeals that are sure to come and on the other hand settling its issues with Prism so that any ITC investigation would be rendered a moot point. The speed with which the ITC can move will defiantly put RIM a weakened negotiating position – well played Prism lawyers, well played.
The second reason is that the ITC unlike courts do not have the authority to order royalties but they do have the power to stop any importation of any new devices; prohibit the sale of devices already imported; and even bar the transmission signals originating from another country. Here again Rim and its lawyers will have to do some business-legal analysis and determine what’s in its best interest – is it better to settle now ( with only an ITC complaint) or is it better to wait and let a potential ITC investigation or even adverse finding force its hand?
The good news for RIM is that it still has time, for now there is only an ITC complaint, no investigation.
