BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Selected portions reproduced here with the firm's permission.]
| Vol. 11, No. 10 || March 12, 2008 |
Cellular/PCS Carriers May Face Patent Infringement Claims From DTL
Some CMRS carriers have recently received letters from a company named Digital Technology Licensing LLC (DTL), alleging infringement of US Patent 5,051,799 (the “799 Patent”) for a “Digital Output Transducer.” The alleged infringement comes from operating a cellular telephone network and sale of Bluetooth headsets and other devices within the United States. DTL’s letter requests that the recipient either cease all activities that infringe upon the 799 Patent or take a nonexclusive license.
DTL claims to have “already successfully licensed the 799 Patent to Nokia, Samsung and Ericsson”, and that it “recently settled its infringement suit against Cingular Wireless and AT&T Mobility.” DTL also claims that it is “actively pursuing a reasonable royalty” from Sprint Nextel, T-Mobile USA, Verizon Wireless and Motorola Corp. It would therefore appear that the claim applies to PCS as well as cellular.
On review of various Federal Court dockets, it appears that DTL filed patent infringement lawsuits in April 2005 against Verizon, in April 2006 against Cingular, and just last fall against T-Mobile USA, AT&T Mobility, and Sprint Nextel. The Cingular and AT&T cases appear to have been settled and were voluntarily dismissed this past January; the Verizon case was stayed pending mediation last August; and the cases against T-Mobile and Sprint Nextel remain pending at the pre-discovery stage before the Federal District Court in New Jersey.
But rather than waiting for DTL to file an infringement suit against it, or agreeing to license DTL’s technology (as Nokia, Ericsson and Samsung have apparently done), Motorola appears to have gone on the offensive by filing a complaint for declaratory judgment of patent non-infringement in the Southern District of New York. Motorola’s suit alleges, among other things, that Motorola has not infringed the 799 Patent, that the 799 Patent is invalid, and that the 799 Patent is unenforceable due to “inequitable conduct in its procurement.” Regardless of whether DTL’s patent infringement claims have any merit, DTL has shown a willingness to pursue patent litigation, which can be time consuming and expensive. Carriers who receive any correspondence from DTL or its representatives should take the matter seriously, and notify counsel without delay. Oftentimes, contracts with equipment vendors contain indemnification provisions that will protect the carrier from any patent infringement claims. However, such indemnification may be conditioned on promptly notifying the vendor and consulting with the vendor with regard to any legal defense. Therefore, any response to patent infringement claims should be carefully coordinated with your equipment vendor at every stage.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
Wireless Spam Looms As Big Problem For Cell Phones
Wireless spam. It is illegal. But it is happening. According to the Washington Post, more than 1 billion text messages are sent every day in the United States, and U.S. consumers are expected to receive about 1.5 billion spam text messages in 2008, up from 1.1 billion last year and 800 million in 2006, based on reports from Ferris Research of San Francisco. The Post reports that Verizon Wireless says it blocks an average of more that 200 million spam text messages every month, and that, generally, wireless carriers are increasing their efforts to take legal action against spammers and to use more sophisticated spam filters.
The major problem with wireless spam is that it costs the recipient—the cell phone user has to pay for the unwanted message. Thus, the FCC and the industry need to find a way to correct this problem before it gets totally out of hand.
As the Post pointed out, “spam is often a nuisance, but more malicious messages can lead to a new form of fraud called ‘smishing,’ a variation of a spam e-mail attack known as ‘phishing.’ Smishing attacks, called such because text messages are also known as SMS [short messaging service] messages, disguise themselves as legitimate messages from e-commerce or financial sites such as eBay, PayPal or banks, and seek to dupe consumers into giving up account numbers or passwords.”
One problem is that political campaigns use text messaging to mobilize voters, travel sites use them for promotions to existing customers, and TV shows (even cable news programs) ask viewers to use their cell phones for polling purposes. This, of course, opens the door to hackers.
As the Post reports: “Spammers use similar techniques to target people through text messages as they do through e-mail. They harvest phone numbers from databases or hack into the records of legitimate companies that have permission to send text messages, such as travel sites or online retailers. The guesswork involved in targeting cell phone numbers is easier than randomly selecting e-mail addresses; while an e-mail address has a unique sequence of characters and a variable length, phone numbers are 10 digits. Therefore, it is easier to blitz thousands of potential customers at once.”
Although consumer complaints about text messaging spam have so far been minimal, according to the Federal Trade Commission, overall wireless spam traffic is on the rise. Large carriers—AT&T, Sprint Nextel, T-Mobile, and Verizon Wireless—already employ anti-spam filters, and plan to unveil flat-rate billing plans for text messaging. According to IAG Research, approximately 20% of the total revenue for wireless carriers comes from delivering text messages. So there is a huge incentive for carriers to block wireless spam.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
COMMENTS SOUGHT ON NANPA TECHNICAL REQUIREMENTS DOCUMENT: The FCC’s Wireline Competition Bureau (WCB) has asked for comment on the technical requirements document that will be used in preparing the solicitation for the North American Numbering Plan Administrator’s (NANPA’s) next term of administration. The NANPA is the numbering administrator responsible for making telecommunications numbers available on an equitable basis. On July 9, 2003, NeuStar, Inc. was awarded the federal contract to serve as the NANPA for a total of five years. The contract is renewable annually and expires July 8, 2008. In order to have an impartial entity continue to administer the North American Numbering Plan, the Wireline Competition Bureau must select a NANPA for another contract term. The entity selected to serve as the NANPA will manage the North American Numbering Plan (NANP) resources in accordance with the terms and conditions of a Federal Acquisition Regulation (FAR) based contract. At the Bureau’s request, the North American Numbering Council (NANC), the federal advisory committee on numbering matters, examined the existing technical requirements document for the NANPA, as updated by NeuStar. On February 29, 2008, the NANC forwarded its proposed technical requirements document to the Deputy Bureau Chief. The Bureau has reviewed and slightly modified that proposed document. It is anticipated that the technical requirements document will form the basis for a Statement of Work in the solicitation for the NANPA. For this reason, the public notice seeks comment on those technical requirements. The NANC’s technical requirements document, as modified, does not, in any way reflect the position of the Commission as to the final technical requirements or contract terms for the anticipated solicitation. Comments are due March 21, and replies are due March 28. All comments must reference CC Docket No. 92-237 and CC Docket No. 99-200.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.