Montreal firm looks to investigate carriers for patent infringement

A Montreal telecom equipment vendor says certain carriers and other network gear makers might have infringed its intellectual property rights, and the firm is prepared to go to court to set things straight.

NHC Communications Inc. in a press release Thursday said it “recently notified a group of U.S., Canadian and European service providers and telecommunications equipment vendors that they may be using NHC’s intellectual property when utilizing automated cross-connects.”

Automated cross-connect switches like NHC’s ControlPoint allow carriers to turn service on and off for individual users without requiring a truck roll out to the central office, explained Sylvain Abitbol, NHC’s president.

According to NHC’s press release, its patents cover a number of automated cross-connect applications, including systems and methods of switching DSL service, providing back-up analogue phone service when a customer’s voice-over-IP connection fails, and carrier-to-carrier service provisioning.

The company seeks licensing agreements with carriers and gear makers, however, “NHC is prepared to enforce its rights through legal means if necessary.”

Abitbol said NHC has sent letters to “an extensive list” of Canadian carriers about the potential patent infringement, but he wasn’t prepared to say just which carriers the firm is targeting.

He pointed out that NHC doesn’t necessarily know that Canadian carriers are infringing the firm’s patents. “We’re saying that in case they do (use automated cross-connects in NHC’s patented manner), we’d like them to know we own the IP for those specific applications.”

Abitbol said patent infringement could occur as a result of carrier ignorance — the service provider might be using automated cross-connects according to NHC’s patents without knowing the patents exists.

According to Jim Holloway, a Toronto-based intellectual property lawyer at Baker & McKenzie, patents are tricky.

“There’s no requirement in patent law that the reproduction be intentional,” he said, explaining that even if a company came up with technology on its own that coincidentally matched technology described in a patent, the patent holder could claim patent infringement. “The fact that you’re doing what the patent covers is enough to amount to infringement.”

Patent infringement accusations seem popular among high-tech companies. Witness The SCO Group Inc.’s contention that IBM Corp. illegally contributed Unix code to the Linux operating system; SCO says that act stomped its intellectual property rights.

Last summer Research In Motion Ltd. (RIM), the Waterloo, Ont.-based company that makes the BlackBerry mobile e-mail device, faced a US$53 million bill payable to NTP Inc., a company that claimed RIM infringed its patents. A U.S. court agreed with NTP.

“They’re certainly becoming increasingly more common,” Holloway said of intellectual property disputes, “largely because there’s more technology being developed and there’s a greater willingness to use existing intellectual property laws to try and address or restrain unfair competitive activities.”

Abitbol said NHC made its patent concerns public for strategic reasons.

“There’s a dynamic situation within the marketplace, most specifically in the U.S. today. The whole notion of the relationship between ILECs and CLECs has evolved around the ability to hand out a line in an efficient manner, in accordance with the FCC,” he said. “We are, we believe, at the crux of those decisions….We also believe we are very well placed in our market penetration with large ILECs in North America, as well as Europe. We just want to make sure we maintain a good position.”

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