Blackberry Inc. v. Twitter

By: Elias Borges, patent & trademark lawyer.

Blackberry Limited has recently filed a patent infringement lawsuit against Twitter Inc. alleging that Twitter has infringed on several of Blackberry's patents relating to messaging. In particular, Blackberry has several patents relating to messaging, instant messaging and related mobile/internet communication systems. Readers might recall that Blackberry Limited used to be a leading manufacturer of mobile communication hard ward back when the company was called RIM. RIM's blackberry pagers and smartphones were very popular in large part because of their instant messaging environment “BBM” (Blackberry messenger). BBM, together with Blackberry pagers and phones were so popular, that Blackberry saw itself as the creator of and principle provider of, instant messaging services. As a result, Blackberry acquired a number of patents protecting their instant messaging technology. With the decline of Blackberry's phones and pagers, Blackberry re-positioned itself as a software and services company instead of a hardware manufacturer, and stopped manufacturing smartphones back in 2016. The phones it now offers are manufactured by other OEMs for Blackberry.

RIM/Blackberry has a long history of protecting its messaging technology by way of patents. Indeed, Blackberry's patent infringement suit against Twitter references no fewer than 6 patents (U.S. Patent no. 8,286,089, no. 8,296,351, no. 8,572,182, no. 8,676,929, no. 9,021,059 and no. 9,349,120. Several of these patents are quite recent, some as recent as May of 2016, while the oldest patent listed was granted back in 2012 based on an application filed in 2005. Twitter, by contrast, wasn't even an incorporated entity prior to 2006. From a “historical” perspective (if 14 years can be viewed as historical), Blackberry is indeed the principle innovator of instant messaging. As their lawsuit claims:

“In many respects, through Blackberry Messenger, and other research and development, Blackberry helped pioneer modern mobile messaging-secure, instant and user friendly on a mobile device. The appeal and success of Blackberry Messenger led consumers to consider instant messaging functionality as an integral aspect of mobile communications, resulting today in billions of people worldwide engaging in instant messaging over mobile devices.”

It's hard to argue against Blackberry's assertion in regards to it's historical influence on mobile communications. However, patent infringement cases are not determined by “historical context”, but rather by the cold headed analysis of claim construction and patent validity. In short, the court is primarily concerned with two central issues. (1) Does Twitter's actions fall within the scope of Blackberry's patents, and (2) are those patents valid? In this regard, Blackberry's allegations should not be dismissed as unctuous or illusory.

I've briefly examined a few of the patents listed in Blackberry's lawsuit, and at first blush, they strike me as being sufficiently broad that they may indeed cover some of the things Twitter might be doing. The proof of the pudding lies under the crust; however, so a detailed analysis of the claim in comparison to Twitter's actions would be required before I could come to any firm conclusion one way or another. As for the issue of patent validity, I have two things to say to that. Firstly, granted patents are presumed to be valid unless they can be demonstrated not to be so. Demonstrating the invalidity of a patent is not always easy, as it would require showing that at the date the patent was applied for, the invention was either already known or obvious from the prior art (setting aside the handful of other less common reasons why a patent may be invalid). If Twitter is found to be infringing Blackberry's patents, the Twitter will have to bring evidence that other substantially similar/identical instant messaging systems were available before the date of Blackberry's patent filings. From my experience, that task is either relatively easy or enormously onerous to complete. Some readers may recall that Blackberry itself (back when it was called RIM), faced allegations of patent infringement in one of the most famous “patent trolling” cases in history. RIM was eventually able to defeat those allegations by demonstrating (after quite considerable searching and expense) that the patents it was alleged to have infringed were invalid for lack of novelty. The question here is, can Twitter do the same?