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The Canadian government has jumped into the patent battle between Research in Motion, maker of the popular BlackBerry wireless device, and NTP Inc. In an amicus curiae brief filed with the Federal Circuit U.S. Court of Appeals last week, our neighbor to the north asked the court to reconsider its finding that Waterloo, Ontario-based RIM is infringing NTP patents. The Canadian government contends that the decision may set a precedent in applying U.S. patent law outside the United States. “Given the number and proliferation of businesses that conduct integrated operations across the Canada-United States border, the panel’s decision affects a substantial number of businesses with Canadian operations, including those carried on using networks and telecommunications,” the brief states. “Canada is especially concerned that the uncertainty resulting from the panel’s decision, with its potential for being applied in an inappropriately extraterritorial or discriminatory fashion, may have the further troubling effect of chilling innovation by Canadian companies operating in key industry sectors in Canada, particularly the high-technology sector.” In December a three-judge panel of the Federal Circuit upheld a lower court’s finding that RIM is infringing patents held by NTP. The Federal Circuit also found that the district court had misconstrued one patent claim and asked the court to determine if the error had prejudiced the jury. In 2002, a federal court jury found that RIM had committed willful infringement and awarded NTP $23 million, which the court later increased to $53.7 million. The Canadian government’s attorneys, Homer Moyer Jr. and Michael Brady, of the Washington, D.C., office of Miller & Chevalier, could not be reached for comment. RIM attorney Henry Bunsow, a partner at Howrey Simon Arnold & White, said the Canadian government contacted RIM after the court’s ruling was reported in the press. The government said it felt the decision was “a bit off base,” Bunsow said, since RIM’s system “is partially located in Canada, and U.S. patents shouldn’t reach there.” “The Canadian government’s got it wrong,” said NTP’s attorney James Wallace Jr., a partner in Washington, D.C.’s Wiley Rein & Fielding, since those using the BlackBerry in Canada are not covered by the court’s ruling. “There are 1.4 million U.S. customers using the invention in this country,” Wallace said. RIM “doesn’t have immunity because it’s collecting money and taking it to Canada.”

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