FOSS Patents: BlackBerry wins German patent injunctions ...

Sueddeutsche Zeitung (SZ), a Munich-based newspaper, stated the previous day night on a group of Germany-extensive patent injunctions that BlackBerry--once a smartphone maker, now really a patent troll--simply acquired in opposition t fb and its WhatsApp and Instagram subsidiaries over a total of four different patents overlaying chat points.

The injunction is provisionally enforceable. If BlackBerry posts a bond or makes a deposit, it will probably implement the injunctions at this stage, notwithstanding facebook can attraction to the Munich higher Regional court and is, in parallel, challenging the validity of those patents earlier than the Federal Patent court of Germany. however facebook has already told the media that the affected features--fb Messenger, WhatsApp, Instagram--wouldn't go out of provider in Germany: workarounds were prepared, so the connected points would have to be eliminated.

BlackBerry sued facebook (with a focus on fb Messenger instead of the social media circulate) and people two subsidiaries over five diverse patents, which I listed earlier this 12 months and will record once more extra under.

The Munich I Regional court docket has now passed down injunctions over four of the five patents. These are the 5 BlackBerry patents-in-swimsuit, some of which they declare to be infringed via only 1 or two of facebook, Instagram, and WhatsApp, and a few of which they declare are infringed by using all three (observe that the injunctions BlackBerry just received relate to patents #1, #2, #3, and #5 on the record, however not #four, as defined extra below):

EP1734728 on a "method and apparatus for switching between concurrent messaging sessions" (first hearing held on 01/10/2019)

accused functionality: displaying two chat histories in parallel

EP1633114 on a "system and system for protecting on a handheld electronic machine information it is radically existing and is quite simply attainable to a person" (first hearing held on 01/17/2019)

accused functionality: instantly making a choice on person profiles containing partly similar facts

EP1746790 on a "method of sharing an immediate Messaging history" (I attended and pronounced on the related first hearing)

accused functionality: sharing messages from the chat background

EP1540495 on a "formula and equipment for displaying neighborhood chat classes on wireless cell terminals" (first hearing: 02/28/2019)

accused performance: displaying chat historical past while textual content is being edited

EP2339799 on an "IM contact listing entry as a video game in development designate" (first hearing: 02/28/2019)

accused performance: chatting right through gameplay

BlackBerry has so far prevailed on all of them however the fourth one ("system and gadget for displaying community chat periods on instant mobile terminals"), over which even the Munich courtroom had ample validity doubts that BlackBerry felt forced to additional slender the claims throughout trial. in that case, no instant choice was viable (for due technique reasons), and as an alternative, there will be yet another trial over that one on March 12, 2020. If BlackBerry persuades the courtroom no longer to stay, then it could win once more.

i am shocked that the court did not stay all 5 instances over severe doubts about the validity of these patents. once I seemed at the claims of the patents-in-suit earlier this year, I right away concluded that they'd all be totally prone to be annulled by way of the Federal Patent court of Germany (which additionally occurs to be based mostly in Munich, which is variety of the Capital of the Patent circulate, as a minimum for Europe). it's partly because software as such is never patent-eligible in Europe. whereas the courts infrequently ever invalidate a patent as an entire on that basis, they do exclude any non-technical facets from their novelty and non-obviousness analysis--and it's tough to see how anything else novel or creative may well be present in those patent claims that isn't just software stuff with no technical impact. I already operated a chat carrier (as part of an online gaming network) within the Nineteen Nineties and wrote an IRC client in 2000, so i do know a lot of the prior art from palms-on experience.

What I even have been capable of finding out is that BlackBerry, represented by Quinn Emanuel (a good company that has now not so first-rate consumers at times), had to narrow numerous patent claims-in-swimsuit all through the infringement lawsuits just to address the courtroom's issues over non-novelty. There are two problem with German patent infringement courts in the context to furnish or deny a stay pending a nullity motion. First, they apply an unreasonably excessive typical (and the "guru" from the Dusseldorf appeals courtroom who has been promotion that excessive average for a long time extra aggressively and fanatically than any one else currently made dozens of personnel of a small business lose their jobs--with Quinn Emanuel again on the enforcing facet--over a patent in consequence held invalid). second--although in many cases that's even more crucial than the commonplace--they take simplest non-novelty (anticipation) arguments seriously and mostly refuse to accept as true with obviousness contentions (lack of artistic step) for no respectable intent (in the event that they can rule on infringement with out appointing knowledgeable witnesses, they certainly could additionally assess the existence of absence of an inventive step, but they just don't are looking to).

The Munich I Regional courtroom orders stays in precisely about 10% of all cases, and that i have the impression the quantity is far beneath 10% for this 12 months. it's a tremendous issue when you consider that that the tremendous majority of all patents during this business end up invalid once they are challenged earlier than the Federal Patent court. in fact, not a single one among all the patents asserted within the circumstances I coated in detail survived a nullity trial (but many never reached that aspect due to prior settlements).

i'm hoping facebook will keep on fighting. They do look like decided not to feed the troll. through mind-blowing down these patents, even though it takes years, they can train the German patent judiciary--other than Mannheim, where you locate by way of some distance probably the most in charge German patent infringement court docket--an important lesson. The federal government is drafting a reform bill, and reform is required so badly that it is generally enacted even before facebook's nullity actions towards BlackBerry are resolved.

in case your enterprise, too, would like to push for patent injunction reform in Germany, please contact me at fosspatents@gmail.com. i'm already involved with many organizations from a variety of industries--and of all sizes--who have sufficient of this crap as a consequence of a broken gadget, and as a former European Campaigner of the 12 months (2005; an award I won towards Bono and which went to a pope and to Governor Arnold Schwarzenegger in other years) i do know a factor or two about patent law. i'm satisfied a greater eBay v. MercExchange-like regime in Germany is achievable, and much more situations than now should get stayed sooner or later.

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