As far as I can tell, the “non-final rejection” is pretty much standard practice in these cases (cite), and is generally non-indicative of the final result (the Microsoft FAT patent challenged recently was also non-finally rejected–twice–only to be eventually upheld). It may be that the USPTO has indicated it intends to reject the NTP patents in the end, but I can’t find a direct quote saying this, and am unwilling to trust blackberrycool.com, which has a fairly clear vested interest in the matter.
The flip side is that by abusing the patent re-evaluation process, which is expected to take years, companies that are genuinely infringing a patent can continue to do so to the detriment of the patent-holder. Since the non-final rejection is neither binding nor final, it’s not unreasonable to proceed on the assumption that the patents are indeed valid, this being the last binding decision made by the Patent Office. Patents don’t last forever; if infringers can indefinitely delay the consequences of infringement by pointing to yet another re-evaluation, then there isn’t a point in having them. The USPTO’s “final” decision is also not the final stage; NTP can then ask for reconsideration at the PTO, and may subsequently appeal to the PTO’s internal board, then the federal courts (which have already upheld the patents). Why, given that we don’t know that the PTO will reject the patents, nor how any of the subsequent stages will go, should we assume the result of a non-final stage that hasn’t even occurred yet, and use that assumption in preference to current, binding decision?
Because their own rules require that NTP be given a chance to defend their patent, something that seems eminently reasonable to me. Surely, whatever your opinion on the patent system, you must agree that patents should be fairly scrutinised, not withdrawn because a case has gained prominence and has large ramifications.
How do you know that NTP aren’t the genuinely innovative company in this case? (I’m genuinely interested to find this out, and am trying to find the patents in question to see what they actually cover.) If the USPTO did indeed simply chuck out the patent, without following their own procedures, and without giving NTP the right of reply, this would surely constitute a screwed up system that helps to enrich intellectual thieves at the expense of innovative companies, and to hinder innovation at the expense of the consumer. Where is the incentive to innovate, if your invention can be summarily taken away, or for that matter if the courts will just let you take someone else’s idea?
Much has been made in the press about Blackberry’s huge user base, and the inconvenience it will cause should the service be shut down. However, this doesn’t seem like an argument in favour of summarily rejecting the patent to me. Surely, if an invention has been this successful, it is one most deserving of protection (assuming it is indeed valid).
