VISTO v. RIMM: Two Months Left

Implications: The last time RIMM faced a serious patent challenge, both the patent  bar and the investment community were sharply focused on the fight and its long-run implications for patent law as well as RIMM itself.  This time, the Visto case looms, but with very little hang-wringing apparent in either community thus far.

Analysis: Visto seems to be sneaking up on everyone. 

Sure, the firm has litigated its patent portfolio successfully before.  And the firm settled with Microsoft a few weeks back, using the same patents that it has long asserted against RIMM.  Yet, as compared to the hullaballo that was associated with RIMM's last big patent fight, the Visto struggle has been more whimper than bang.

Could it be that everyone assumes that RIMM wouldn't make the same mistake twice?  Last time, after all, RIMM played a dud hand of cards until the very last litigation moment; as a result, the firm not only paid a pretty penny to then-rival NTP but also likely lost business as nervous would-be subscribers jumped ship to other services.  (RIMM obviously rebounded.)

Could it be that RIMM is just a more substantial firm now and, as such, less vulnerable to even a serious patent challenge?  RIMM is certainly in a great position in its market; however, to hear Visto's executives tell the story, the market is in an incredibly early stage and Visto (and others) are in a position to come on strong.

Will the Patent Office save the day?  The Visto patents are under review at the Patent Office and, so far, getting somewhat beaten up; but that process has years left on its clock, and it's unclear if RIMM can wait that long to be vindicated.

Me?  I'm getting a little nervous as I wait for the trial later this summer.  RIMM might well be right on the merits (I liked RIMM's substance arguments last time, too) but it is hard to win a patent case like the one they now face, even if the substance is such that one wishes it were so.