A recent press report reveals that a complex BlackBerryGate reexamination of a NTP patent was given a one-hundred-twenty-one (121) page rejection in five (5) business days after receipt of incoming papers. This may be a world record for speed for any reexamination when one weighs the importance, complexity and number of claims.

Ongoing FOIA activities and investigative reporters delving into the interstices of the BlackBerryGate reexamination proceedings involving NTP's patents have been fueled anew by the byline DowJones report released today by DowJones staff reporter Stuart Weinberg that provides interviews with lawyers involved with the case.

Today's DowJones report focuses on a brief snippet of the overall BlackBerryGate reexamination; it touches upon alleged violations of rules that proscribe communications by third parties with the PTO concerning patents in reexamination. It is an unmistakable, unambiguous rule that an ex parte patent reexamination, once commenced with a rejection, is a strictly ex parte matter where no participation is permitted by third parties. No communications of any kind are permitted. Indeed, the second sentence of Rule 1.550(g) of the Rules of Practice in Patent Cases provides that "no submissions on behalf of any third parties will be acknowledged or considered…" 37 CFR § 1.550(g)(emphasis added). Thus, even a telephone call is proscribed.

In today's DowJones report, NTP Filing Accuses U.S. Patent Office of Bias in Reexam, a PTO spokesperson is quoted as saying that "[n]o one from the USPTO has ever met with representatives of RIM or any other organization to discuss reexamination of NTP patents[.]" (emphasis added). But, there are free admissions by RIM and PTO officials that they did actually meet to discuss other aspects of the BlackBerryGate patents, viz., the litigation on such patents (as technically distinguished from the reexaminations, per se).

Most troubling of all the allegations posted in the DowJones report is that RIM is alleged to have put pressure on the PTO to expedite the reexamination proceedings. Indeed, had reexamination proceedings been expedited to give a final result in favor of RIM before 2006, then RIM could have saved the $612,000,000.00 that it paid in settlement of its dispute with RIM. Asking the PTO to expedite matters could hardly be considered a trivial matter when one looks at a figure of $ 612,000,000.00 savings.

There is a specific allegation that despite the voluminous nature of the BlackBerryGate reexamination files which normally would take two or months and sometimes more than a year for action – based upon observations of other reexaminations, in the case of the BlackBerryGate reexamination this complex case was acted upon within five (5) business days. Per DowJones:

NTP ... alleged in its filing that the PTO expedited its reexaminations to assist RIM in its legal dispute with NTP. For instance, NTP alleges the PTO expedited a final-office action rejecting a key NTP patent so it could be issued before RIM's injunction hearing, the filing said. The office action was released the day of the hearing, and just five business days after NTP submitted a rebuttal to the PTO's preliminary rejection of the patent, the filing said.

"'The PTO could not have reviewed and properly considered (NTP's) February 15 filing, which was hundreds of pages long including numerous claims and several amended and new claims, and prepared its own 121-page decision, in (five) business days,' the filing said.

"RIM lawyer David Long said the PTO's efforts to accelerate the NTP reexaminations were consistent with the agency's stated goal of expediting all long-standing reexaminations."

The DowJones report is very fair and reports that all the charges are just that, "allegations". It remains to be seen if there is any fire to burst forth from the smoke.