BlackBerry Sues the Competition

When patent law blocks innovation.


Patents are supposed to foster innovation by restricting competition—in the Constitution's words, to "promote the Progress of Science and useful Arts" by giving inventors a temporary "exclusive Right" to their creations. But sometimes those restrictions can suppress innovation instead of encouraging it.

Consider the Typo Keyboard Case, which is supposed to start shipping to consumers this month. The idea behind the device is simple. Right now, people who prefer a smartphone with a physical keyboard basically have just one option, the BlackBerry. If you like real keyboards but prefer the iPhone's operating system, you have to either put up with the BlackBerry's software or put up with the iPhone's virtual keyboard; no phone-maker offers a product that combines the best of both worlds. The Typo fills that gap. It's a case that lets you slip a keypad over an iPhone and type the way the QWERTY gods intended, without a flat touchscreen that makes errors inevitable and without an algorithm that "corrects" words that weren't errors in the first place.

The people who created the case have been very explicit about what they were doing. When a CNN correspondent discussed the device with Typo co-founder Ryan Seacrest—yes, the American Idol host—the reporter suggested that the product gives users "the best thing about a BlackBerry, within the iPhone." Seacrest replied, "That's kind of how this came to fruition." Many press accounts have noted how much the Typo keyboard looks and feels like a BlackBerry keyboard; the phrase "BlackBerry clone" comes up a lot.

Enter BlackBerry's lawyers. In a suit filed January 3, the company charged the upstart with violating three of BlackBerry's patents and its trade dress. (A trade dress is a set of distinctive visual characteristics that reveal what company made a product—the shape of a glass Coca-Cola bottle, for example. They are legally protected in order to prevent customer confusion, so the premise here is that people might mistake the Typo for a BlackBerry product, even though it does not bear the BlackBerry logo and even though BlackBerry is not in the business of making cases for iPhones.) In addition to asking the courts to block sales of the Typo, BlackBerry is seeking triple damages.

I won't venture a guess as to how the suit will fare in court (though I'll note that there are in fact some differences between the two keyboards—the placement of the question mark and exclamation point have been reversed, for example). Instead I'll complain about the fact that it's possible to drag a company into court for making this kind of product in the first place. A device that lets you mix and match elements of the iPhone and BlackBerry is an innovative and useful technology. The Typo isn't the only product that offers this possibility—the bulkier Keyboard Buddy Case has been on the market for a while, for instance, and the Solomatrix Spike attaches a keyboard to an iPhone on some hinges, so you can swing it on and off as needed. But the Typo has its own distinctive approach to the design and engineering issues involved, and at least some users think it's the best available option.

It could also lead to still better options. Right now the market evidently has room for just one major smartphone with a physical keyboard, and the business that makes that product is struggling. No one expects another company to start manufacturing a new keypad phone anytime soon. But a phone accessory that serves the same market niche: That may make sense. If the Typo does well, there's a decent chance that other enterprises will follow.

Unfortunately for BlackBerry, that may threaten its strategy for survival, which is to pursue the keyboard crowd at a time when other phone-makers aren't serving that market. You can't help wondering whether the primary purpose of the Typo suit is to squash some competition. Even if the case doesn't drive the Typo off the market, it still will force a startup to divert its resources to defend itself in court. That isn't good for consumers, and in the long run it isn't necessarily even good for BlackBerry: If people would rather attach a keypad to an iPhone than use the company's products, perhaps it should spend less money on lawyers and more coming up with new innovations of its own.

This story may well end with Seacrest and company learning that BlackBerry has the law on its side. But if that happens, the law is doing just half of what it's supposed to do. Restricting competition? Definitely. Fostering innovation? Not this time.