Tomorrow, maybe we'll know about the injunction against RIM for Blackberry product infringement on NTP patents.
As a lawyer, I've been wondering what is in the public interest in this context. The public interest is one of the four prongs of the test that the judge is supposed to weigh in determining whether to grant an injunction. How does the judge figure out what is in the public interest?
Is it a question of long-term interest versus short-term interest, for example?
RIM has apparently put in affadavits of public officials, such as police officers and other first responders, to say that they really depend on their Blackberries. Should the court say that the public interest is what the first responders say it is? Is there anyone in America that we trust more these days than first responders?
Is it public officeholders who define the public interest? At least elected officials have some idea of what the constituents think is the public interest.
On the other hand, public officeholders have re-election as a primary goal. Judges (federal ones, anyway) hold office for life precisely because we want their perspective to be different from the perspective held by elected officials.
So, what if the judge thinks that the public interest calls for the first responders to have their own system, that they shouldn't be sharing a system like Blackberry that is open to anyone who pays the fee? How would NTP provide any evidence that the public is better off if first responders don't have Blackberries?
Should it be first responders who drive the public interest inquiry at all? Maybe the costs to the public in a macro or aggregate sense are what should drive the question. Apparently RIM put in evidence from Arthur Laffer (the Laffer curve Laffer) as to the cost to the public of a potential shutdown. Is the public interest really measurable in dollars? Or is that simply one factor?
These cases seem to include no evidence from either party about whether an injunction, for example, would make people more likely or less likely to invent new things. That's really the Constitutionally important question. I want some clever sociologist or psychologist to figure out what makes people invent new and better things in greater numbers. It would be great to have some empirical evidence that suggests that favoring NTP will create more incentive for inventors or denial of an injunction against RIM will create more invenctive for inventors. If we could only tell whether NTP or RIM is more inventive.
I admit I'm troubled by what evidence a lawyer could provide to a court to demonstrate whether an injunction against RIM is in the public interest.
11:00:25 PM 
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