Dispute Details

The Typo Keyboard is a $99 iPhone case that attaches an extended QWERTY keypad to the bottom of the phone. The accessory’s keypad closely resembles that seen on BlackBerry devices.

Blackberry filed the lawsuit with the US District Court for Northern California, the home state of Typo’s operations. The filing accuses Typo of infringing keyboard patents , , and . BlackBerry is asking for an injunction as well as an eventual jury trial.

������������������’s Position

������������������’s claims rely on two main points, namely that the Typo keypad is a clear and intentional misappropriation of ������������������’s trade dress, and also that the trade dress is a key and distinctive part of Blackberry’s value proposition. (Trade dress is a term of art referring to an item’s visual characteristics which act as a source identifier. The concept is similar to the "distinguishing guise" in Canadian trade-mark law.)

“This is a blatant infringement against ������������������’s iconic keyboard, and we will vigorously protect our intellectual property against any company that attempts to copy our unique design,” said BlackBerry General Counsel and Chief Legal Officer Steve Zipperstein about the suit. “From the beginning, BlackBerry has always focused on offering an exceptional typing experience that combines a great design with ergonomic excellence,” continued Zipperstein. “We are flattered by the desire to graft our keyboard onto other smartphones, but we will not tolerate such activity without fair compensation for using our intellectual property and our technological innovations.”

������������������’s outlines in great detail, and with images, its keyboard’s intentional design functionality. Shapes, curves and frets are all included in the intellectual property rights that BlackBerry holds and argues Typo’s keyboard infringes.

Typo’s Response

Typo argues that the QWERTY keyboard is too long-standing to be patented, and that they put significant work of their own into creating their product.

Typo initially responded with this comment to :

“We are aware of the lawsuit that Blackberry filed today against Typo Products. Although we respect BlackBerry [sic] and its intellectual property, we believe that ������������������’s [sic] claims against Typo lack merit and we intend to defend the case vigorously.��We are excited about our innovative keyboard design, which is the culmination of years of development and research.”

Author Analysis

I have to admit, even as a BlackBerry fan, I found Typo’s initial messaging compelling. It seems unrealistic for there to exist a patent on a QWERTY keyboard slapped onto a mobile device. Surely the degree of ubiquity is such that any specifications can’t matter immensely.

������������������’s filing, however, outlines the extensive thought and detail poured into its keyboard. Reading the filing is like catching a glimpse of the recipe for Blackberry's "secret sauce".

Lines like, “… the Bold featured the use of curved bars (referred to as “frets”) above each row of keys. Each of the keys in the top three rows is a roughly square shape, and arranged like the keys on a piano, without any significant space or material between them horizontally,” and “The Q10’s physical keyboard continues to incorporate bars above the rose of keys having the distinctive sculpted appearance of the thumb-optimized ergo-surf design,” make it apparent that the BlackBerry keyboard was not a happenstance success, but rather a major consideration in ergonomics and design.

More to the point, to me it seems as if the Typo keyboard is a direct replication of this design. In that opinion, I am not alone; the tech community also the similarities.

Even Seacrest hinted at the genesis of the Typo keyboard in . When the interviewer commented, “So it’s the best thing about the BlackBerry, within the iPhone,” Seacrest's response was: “That’s kind of how this came to fruition.”

������������������’s confidence in their claim is evident in their choice for jury adjudication. It takes a strong claim to believe that a citizen jury will appropriately comprehend the basis for a claim in a technology patent case. But again, based on the detail of ������������������’s intellectual property rights and the initial response of tech commenters openly admitting the design similarities of the devices, the claim appears to have merit.

From a legal perspective, the most rational response is likely for Typo and BlackBerry to settle, with Typo paying a portion of profits to BlackBerry in design royalties.

From a business perspective, however, BlackBerry may wish to take this to court to permanently shut down Typo’s production. In the grand scheme of the smartphone wars, allowing the existence of any product that allows non-BlackBerry devices to sport a Blackberry-esque keyboard is a threat to BlackBerry's market share and profits. The smartphone market is intense, with companies involved constantly jockeying for positions better than the rest; BlackBerry could easily decide that committing to a legal battle and winning it outright is more important than ceding any ground that will undermine its competitive advantage.

Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine.

The post Would a Keyboard by Any Other Name Feel as Sweet? BlackBerry Sues Ryan Seacrest’s Typo appeared first on IPOsgoode.

And as has been common in commentary, he also draws parallels to the demise of previous research and development (R&D) powerhouse Nortel. As Yakabuski wrote,

“If Blackberry is sold – as seems likely after the board announced a strategic review and hired investment bankers – it will most likely be carved into pieces. That stands to make Canada’s innovation situation worse. The company, which benefited from government grants and loans in its early days, has given back by nurturing the countless startups for which BlackBerry is a customer or mentor. Nortel played a similar role in its day. The loss of an anchor can compromise an entire ecosystem of innovation, making it even harder for startups to make the leap to commercialization.”

The Globe and Mail has been reporting extensively on the company’s future, seen in articles like “” and “”.

Breaking Down the Issues

A quick scroll through the on any of these articles – or casual listening across our country’s proverbial water coolers – makes it clear that the future of Blackberry is a hot button issue. There are camps, there is rhetoric, and there is emotion. But using Blackberry’s current situation as either a symbol of contemporary innovation challenges or as a canary-like indicator for the future of Canadian innovation is problematic.

In unpacking the link between Blackberry’s future and its impacts on Canadian innovation, there are two distinct arguments. From the perspective of critics, the hypotheses are that Blackberry is struggling because it lacks innovation; also, the sale of Blackberry will reduce the amount of innovation in Canada. In my opinion, both are logic leaps.

Is Blackberry Struggling Because it Lacks Innovation?

Ongoing , device operating system reviews and the controversial but creative idea to – as well as the decision to – are clear signs of innovation.

There may be better reasons to explain Blackberry’s loss of market share and sinking stock price. These include that the innovations were not to maximize appeal with the , that , or that or product have faltered with growth. All of these claims seem to hold some truth to them. To say that Blackberry has lacked innovation, however, is, in my opinion, fundamentally inaccurate.

Will the Sale of Blackberry Reduce Innovation in Canada?

It’s difficult to predict whether any sale or breakup of Blackberry will result in quantitatively less innovation than if the company retains its current corporate structure. If we judge innovation by R&D investment, it would be hard to have mathematical certainty about what Blackberry would have spent over its company future in the event of a sale, and vice-versa. As a result, I would contend that outright, quantitative prediction is a mug’s game.

In my opinion, a more intelligent, nuanced response is that R&D is a blunt and sometimes indeterminate measurement of innovation. The Council of Canadian Academies recently completed an at the request of Industry Canada to assess innovation in Canada. Though it did find many benefits to industrial R&D (IR&D) investment, it’s not the same thing as innovation.

“IR&D and innovation are not synonymous. IR&D consists of any scientific research or technology development undertaken by Canadian businesses. Innovation, on the other hand, is the broader concept that can be defined as ‘new or better ways of doing valued things.’”

The panel listed four key areas of R&D strength in Canada, including:

• Aerospace products and parts manufacturing,
• Information and communication technologies,
• Oil and gas extraction, and
• Pharmaceutical and medicine manufacturing.
  
  

And here’s where the argument that a sale of Blackberry will reduce innovation in Canada begins to sound particularly weak. Even if a sale results in reduced R&D spending by the new corporate form or forms – which is difficult to prove – and even if a reduction in R&D spending guarantees a reduction in innovation (also difficult to prove), it stands to reason that a single company should never dramatically impact Canada’s overall innovation agenda. Blackberry is one company in one of the four areas of R&D strength in Canada.

The Big Picture

R&D and innovation in Canada have bigger problems than Blackberry’s future. A recent Conference Board of Canada shows that even by a broad array of 21 different indicators, Canada lags. According to their findings,

“Despite a decade or so of innovation agendas and prosperity reports, Canada remains near the bottom of its peer group on innovation, ranking 13th among the 16 peer countries / Countries that are more innovative are passing Canada on measures such as income per capita, productivity, and the quality of social programs.”

that, from a digital communications technology perspective, the temptation for entrepreneurs to sell out too early or join the brain drain to Silicon Valley is part of the problem.

“And the magnetic allure of Silicon Valley means people with qualifications are migrating en masse to the Bay Area. An estimated 350,000 Canadians live and work in the Valley – an entire lost generation. It’s no exaggeration to say that much��of the world is in the midst of a global brain drain of engineering talent.”

Eli Lilly president and CEO John Lechleiter believes that, from a pharmaceutical perspective, .

Michael Bloom, vice-president of organizational effectiveness and learning for the Conference Board of Canada, believes that companies need to.

There are many key contributing causes of and prescriptions to Canada’s innovation lag, but none of them truly involve Blackberry. At most, Blackberry is the symptom - not the diagnosis.

Conclusion and Insights

Using Blackberry’s current challenges to strike up a national debate on R&D or innovation is thorny. In rifling through the waves of press coverage, it seems like media outlets are using an innovation angle to give legs to one of its favourite corporate narratives.

The obsession with Blackberry fortunes is natural because mobile devices are deeply personal products that are highly integrated into our daily lives, whether consumer, student, or professional. Also, Blackberry’s is a reverse underdog story, and some people love watching a former market leader struggle.

Unfortunately, when we bring larger public policy debates around innovation into heated discussion around controversial companies like Blackberry, it can unnecessarily politicize or bias the national discourse. As well, I worry that such politicization may allow other Canadian companies that aren’t doing their part on the innovation front, but are in less prominent or popular industries than mobile devices, to escape the same amount of media scrutiny.

The post What a Potential Blackberry Sale Says About Canadian Innovation appeared first on IPOsgoode.

The Rise of RIM

Nearly 30 years ago two young engineering students, Mike Lazaridis and Douglas Fregin, co-founded RIM. The company began as an electronics and computer science consulting business in , but would then shift its focus towards the transmission of wireless data. RIM would become one of the first companies to develop wireless data technology in North America.

With RIM’s rising success in the late 1990’s,��the company went public and began trading on the . Shortly after, RIM introduced the first wireless handheld computer signing agreements with several wireless Internet providers. RIM was ranked as one of Canada’s fastest-growing technology companies.

Patent Infringement, Competition, and the Fall of RIM

Late 2001 gave rise to patent litigation that would last nearly five years. ., holder of numerous patents for wireless email technology, filed a lawsuit in a U.S. Federal Court. NTP accused RIM of and was awarded $23.1M in damages. An which banned the sales of BlackBerry in the U.S. , the Court upheld RIM’s patent infringement.

In 2006, a settlement was reached which saw for a “perpetual, fully paid-up licence going forward.” This licence essentially allowed RIM to continue selling its products and services without any further payments to NTP.

Irrespective of the patent infringement lawsuit which arguably stifled RIM’s growth, 2007 saw RIM deemed the most valuable company in Canada with �����Ի� from the beginning of the year. Ironically, one of RIM’s most successful years also saw the emergence of the competitor that would be responsible for its decline: .

The iPhone achieved immediate success. Its operating system was innovative, touchscreen technology novel, and (app) unparalleled. RIM’s slow and inadequate responses with the BlackBerry Storm, Torch, and PlayBook, were not only met with disappointment, they saw . To make matters worse, RIM’s lack of innovation also made it vulnerable to other competitors such as . Currently in a distant fifth place, RIM (now BlackBerry) holds a .

The Rise Again?

Now that BlackBerry has released its new touchscreen smartphone (Z10) the main question is, will this smartphone be any different? Opinions will vary; however, the is that the Z10 is comparable in performance to other high-end smartphones on the market today. Not only does the Z10 technology allow for easy navigation through its operating system, BlackBerry has realized that hardware should not be the only consideration. BlackBerry has put considerable efforts into bolstering its apps and ensuring the . One can speculate that the company might have all the right pieces together to compete.

On the other hand, many analysts feel that while the Z10 may help BlackBerry in the short-term, the company’s problems are too deeply rooted. feel that BlackBerry will continue to contend with :

1) ������������������’s dominance of the “company phone” market will be a non-factor. Companies have stopped purchasing smartphones for their staff and are allowing their employees to select their own devices. being the most recent company to do so causing BlackBerry share prices to drop slightly; and

2) BlackBerry will struggle to appeal to mainstream customers. Current BlackBerry users will likely purchase the Z10; however, the company’s long-term success will depend on its ability to take the market share away from its competitors.

An issue not often discussed is the stigma BlackBerry has instilled upon itself of being an inferior smartphone. ������������������’s repeated failures coupled with its competitors cult followings makes ������������������’s road to increasing its market share a difficult one. Only time will tell if the smartphone world holds a place for BlackBerry.

Danny Titolo is a JD Candidate at Osgoode Hall Law School.

The post The Rise and Fall [and Rise Again?] of BlackBerry appeared first on IPOsgoode.

Canadian telecommunications giant Research in Motion (RIM), which manufacturers the popular BlackBerry, has reportedly offered information and tools to assist India’s government in monitoring encrypted emails and messaging services ().����India, which had threatened to shut down the BlackBerry service, is the latest country to pursue access to user communications from RIM.�� Recently the governments of Saudi Arabia and the United Arab Emirates have also threatened to ban BlackBerry services unless RIM provides access to user data ().

The threat by foreign governments to ban BlackBerry services poses a serious danger to RIM.�� Competitors in North America continue to eat away at RIM’s once dominating grasp on the smart-phone market, and RIM wishes to expand in the global marketplace to further develop its customer base.�� The reported that during the last fiscal year, 37 per cent of RIM's $15 billion in revenue came from outside North America, up from 23 per cent about five years ago.�� The demand for security concessions from countries such as India may threaten to erode RIM’s customer base as smart-phone manufacturers Nokia and Apple have already lined up to move into this market.��

RIM, unlike rivals Nokia and Apple, controls its own networks, which handle encrypted messages through centres in Canada and the UK.�� Should BlackBerry service be restricted in India, Nokia and Apple would easily snatch up RIM’s market share. This is because Nokia and Apple rely on local telecommunications infrastructure to transmit their data allowing easy government oversight.�� As a result Nokia and Apple would not be subject to a similar ban, as proposed by the Indian government against RIM.��

India has suffered deadly attacks, by both home grown and foreign militants, with some regularity for years. Mohammed Ajmal Kasab, the lone surviving gunman in the 2008 Mumbai attack, told an Indian court that he and his comrades all had Nokia mobile phones ().�� India and other foreign governments are seeking access to encrypted Blackberry communication that could be used to coordinate national security threats.���� ��

In response, RIM has assured its customers ‘that it genuinely tries to be as cooperative as possible with governments in the spirit of supporting legal and national security requirements’ ().�� ��RIM stated that a foreign government’s access to BlackBerry communications should not be boundless, and ‘lawful’ access be limited by four principles.�� First, that access be restricted to the context of national security requirements as governed by the country's judicial oversight and rules of law.�� Second, government access to BlackBerry services should be no greater than regulators already impose on RIM’s competitors and other similar communications technology companies.�� Third, no changes will be made to the ������������������’s security architecture and finally that RIM will maintain a consistent global standard for lawful access requirements that does not include special deals for specific countries.

RIM and other companies will likely continue to work with foreign lawmakers in their respective countries to resolve national security concerns.�� However, in doing so RIM risks damaging an important aspect of its business, its reputation.

BlackBerry Messenger users have long enjoyed the secure end-to-end encryption methods used by RIM to scramble information sent from one RIM phone to another.�� However, as reported by the , RIM may have agreed to place a BlackBerry server inside Saudi Arabia and more recent reports indicate RIM may hand over the “codes” to all local BlackBerrys to the Saudi government.��Providing such information has drawn RIM into the ongoing debate of the morality and ethics of allowing foreign government access to communications that can be used to quell political dissent and imprison human rights advocates.�� The reported the comments of Ron Deibert, director of the Citizen Lab at the University of Toronto’s Munk School of Global Affairs: “These can be ruthless nasty regimes where political opposition or human rights advocates are imprisoned or worse. In colluding with them, [RIM is] assisting in that abrogation of human rights.”

Canada and the United States (U.S.) have aligned behind RIM against access to Blackberry communication, citing the need to defend consumer privacy and internet freedom ().�� The economic interests of Canada and U.S. are also at stake, which may have instigated the strong response by these countries against the proposed BlackBerry bans.�� Patrick Leblond, an expert on international economic integration and government-business relations at the University of Ottawa summarized Canada’s position “It is good business for the Canadian government to stand up for RIM, since this is one of the world's leading technological companies, and ‘what is good for RIM is good for Canada.’”������

RIM’s struggles with foreign governments to maintain its security systems and preserve its market share will likely expand to other forms of communication.�� Any concessions made by RIM may set a precedent for future negotiations between foreign governments and other communications companies.�� As reported by the , the Indian government is already considering a crackdown on Google and Skype to gain access to the information transmitted by these services. Moving forward, it will be interesting to observe the impact that RIM’s security negotiations will have on other communications based companies.

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