Blackberry says Facebook, Snap infringe its messaging application patents

LOS ANGELES -- Facebook Inc. and Snap Inc. fought in federal court Thursday against allegations that their messaging applications infringe on patents owned by personal digital assistant manufacturer BlackBerry Ltd.

U.S. District Judge George H. Wu, who let attorneys know up front that he uses a landline, entertained a combined hearing for the two suits BlackBerry filed earlier this year against the social media giants. Wu provided a tentative ruling on defendants' motions to dismiss upon which attorneys from Quinn Emanuel Urquhart & Sullivan LLP, Paul Hastings LLP and Cooley LLP, representing BlackBerry, Snap and Facebook, respectively, could structure their arguments.

Wu informed the parties that although he did not particularly agree with the federal circuit's January ruling in Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 2016-2684, 2017-1922 (Fed. Cir. Jan. 23, 2018), his tentative was formed with the understanding that he was bound by that decision.

As such, he pressed attorneys to present arguments that either defended or refuted the validity of BlackBerry's asserted patents in the context of their abstractness.

Wu's tentative indicated he is considering dismissing BlackBerry's claims that its patent for time-stamping instant messages lacks sufficient support for assertion, pushing attorneys from Quinn Emanuel to explain the improvement that would allow the BlackBerry claim to meet the standards set by Core Wireless.

"The claims revolve around a specific way to display the timestamp," said Jordan R. Jaffe of Quinn Emanuel in response. "This is a way to provide to the user this sense of flow that they know when the relevant message was sent. This is a specific technique for improving the interface."

Attorneys from Cooley and Paul Hastings argued BlackBerry's claims lack the "how" that would take its patents out of the realm of the abstract. Yar R. Chaikovsky, a Paul Hastings partner, made several references to antiquated methods of communications -- from traffic reports on the radio to Winston Churchill's war room -- to indicate the claims themselves could be applied to any number of situations, thereby making any assertion of proprietary ownership impossible.

"We've been doing this before there were electronic devices," Chaikovsky said. "We continually get more accurate along with time. That's not the issue here. That's not the issue with Core Wireless. The notion's there, they had an idea, but it's an abstract idea." BlackBerry Ltd. v. Snap Inc., 18-2693 (C.D. Cal., filed Apr. 6, 2018).

Heidi L. Keefe of Cooley, who made arguments on behalf of Facebook, pointed to a case decided last week that expanded on Core Wireless. On July 24, the U.S. Court of Appeals for the Federal Circuit decided Interval Licensing LLC v. AOL, 13-1282 (Fed. Cir. 2018), furthering the definition of an "abstract idea" and the implications that has on the validity of asserted patents.

Keefe argued BlackBerry's patents fail in this latest test because they lack a specific directive on how its alleged improvements to messaging applications are accomplished. She asked Wu to reconsider, for example, his tentative ruling to allow BlackBerry to assert its claims involving a patent for how notifications of new messages are displayed. BlackBerry Ltd. v. Facebook Inc., 18-1844 (C.D. Cal., filed Mar. 6, 2018).

"There's nothing technical about that," Keefe said. "These claims just talk about the functional aspect without telling you how it's accomplished."

Wu ordered an expedited transcript to review the positions and said he would issue a final ruling by Aug. 20.

Attorneys from all parties declined to comment after the hearing. Present at the hearing were executives from BlackBerry and Facebook, including BlackBerry Deputy General Counsel Edward R. McGah Jr., who said the company does not comment on ongoing litigation.