patent trademark

BlackBerry lawsuit against Facebook continues in Germany

Facebook granted permission by a Seattle court to serve a subpoena on Microsoft

In the latest round of the legal battle between BlackBerry and Facebook, BlackBerry’s desperate patent lawsuit against Facebook is continuing in a Munich court in Germany, according to US court filings by Facebook.

Back in March of 2018, BlackBerry filed a patent infringement lawsuit against Facebook and its companies WhatsApp and Instagram for their use of instant messaging. The lawsuit alleged that Facebook “created mobile messaging applications that co-opt BlackBerry’s innovations, using a number of the innovative security, user interface, and functionality enhancing features that made BlackBerry’s products such a critical and commercial success in the first place.”

A U.S. Judge quickly trimmed that lawsuit, dismissing BlackBerry’s wilful infringement and indirect infringement allegations against both Facebook and Snap. The U.S. District Judge knocked out claims from one of the seven challenged patents but otherwise denied Facebook’s and Snap’s motions to dismiss, albeit without prejudice to raising the motions again later in the case.

In September 2018, Facebook sued BlackBerry for patent infringement related to voice-messaging technology, accusing BlackBerry of stealing its voice messaging technology, among other patented processes. Facebook is seeking unspecified damages for infringement of six patents.

In addition to the voice-messaging patent, Facebook cited infringement of patented technology that improves how a mobile device delivers graphics, video and audio and another that centralises tracking and analysis of GPS data.

BlackBerry is claiming that WhatsApp, Instagram and Facebook Messenger (all owned by Facebook) infringed two patents owned by the company.

BlackBerry states that all three apps breached patents that provide a means of displaying a chat session on a screen, during which a user could activate a function to edit a text message. BlackBerry says the apps infringe on its patents as they permit users to edit a text message while concurrently presenting a user’s chat history in another portion of the display.

BlackBerry also claims that the apps infringed one patent by permitting users of those apps to switch conversations between recipients by tapping on a banner that appeared at the top of a phone screen. Facebook argues that so-called prior art invalidated the patent.

The Munich Regional Court earlier issued a judgement preventing Facebook from offering the WhatsApp, Instagram and Facebook Messenger apps in Germany with functionality that infringed one of BlackBerry’s patents. New apps were designed by the social media company, but BlackBerry also filed infringement proceedings against those new versions. The case is now pending in Germany.

Facebook has brought two actions to the Federal Patent Court in Germany in an effort to invalidate the two disputed BlackBerry patents, pointing out that Microsoft’s MSN Messenger – released before the application date for one of BlackBerry’s relevant patents – already featured a display comparable to that which BlackBerry claims to have developed.

The MSN Messenger feature was available by 2002, a year before BlackBerry applied for the patent that it claims Facebook has breached.

Facebook has now been granted permission by a Seattle court to serve a subpoena on Microsoft in the U.S. seeking specific documents related to MSN Messenger, as well as relevant source code.

Facebook told the court:

“The document discovery will aid the German proceedings by establishing that the MSN Messenger’s functionality is prior art anticipating both of BlackBerry’s patents”.

Facebook noted that German court proceedings do not provide for a document discovery process such as that used in the US, adding that German courts have previously accepted evidence obtained in the manner which Facebook will do from Microsoft.

BlackBerry no longer operates the consumer version of BBM. They did license it out to Indonesian company PT Elang Mahkota Teknologi Tbk (Emtek) in 2016 but that turned out to be another dismal failure with Emtek closing it down in 2019, saying that “users have moved on to other platforms” and that it was difficult to get new users to join the service.

“Since 2016 we have tried our best to compete in this market and launch many new features and content that we had hoped would grow the BBM user base,” they explain.

“Despite all of our efforts, we found that the network effect of the market leaders is getting stronger and we have been squeezed out of user preferences.”

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