March 21 (Bloomberg) -- BlackBerry Ltd. argued that Ryan Seacrest’s Typo Products LLC copied its keyboard before a judge who said two of the Canadian smartphone maker’s three patents in the case appear to be valid.
Kevin Johnson, a lawyer for BlackBerry, told U.S. District Judge William H. Orrick in San Francisco today that Typo’s copying in the design of an external case for Apple Inc.’s iPhone was “intentional and deliberate.”
The similarities between Typo’s iPhone case, which has a keypad that attaches to the iPhone 5 and iPhone 5s to allow users to easily tap out messages, and the keyboard for BlackBerry’s Q10 smartphone are “unmistakable,” Johnson said.
BlackBerry, based in Waterloo, Ontario, is seeking a court order blocking Typo from selling the $99 case. Typo has shipped at least 4,000 cases since January, the company said in court filings.
BlackBerry sued Los Angeles-based Typo in January, alleging Typo’s case infringes BlackBerry’s design and copies its inventions.
“If the consumer can look at this and say this product is ripping off BlackBerry and knows it’s not a BlackBerry product, how does that make a difference in my analysis?” Orrick said at the hearing.
Orrick said that it doesn’t appear that two out of the three patents at issue in the case are invalid. He said he will issue a ruling on BlackBerry’s request to block Typo sales “promptly.”
James Asperger, a lawyer for BlackBerry, said the company will suffer irreparable harm if Typo is allowed to continue to sell the case because it has invested billions in the development of its keyboard and has lost sales to customers who buy the case instead of a BlackBerry Q10.
BlackBerry has over the years lost business to Apple and Google Inc.’s Android devices. Its share of the global smartphone market tumbled to just 1.7 percent in the third quarter from 4.1 percent a year earlier, according to research firm IDC.
Olivier Taillieu, an attorney for Typo, said BlackBerry is trying to monopolize the keyboard market and many keyboards have the design characteristics that the smartphone maker is claiming it owns.
BlackBerry hasn’t shown that its mobile phone sales are driven by the popularity of its keyboards, he told Orrick.
“The Q10 by and large was a failure” and “has literally not sold,” Taillieu said. BlackBerry “hasn’t provided any evidence of nexus between the keyboard and the commercial success of this device,” he said.
Typo didn’t copy the BlackBerry keyboard and is a “grain of sand” compared to BlackBerry’s, he said.
“BlackBerry’s problems are not related to Typo,” Taillieu said. “We don’t believe Typo is the reason for any loss of sales to BlackBerry.”
Typo said in company statements and court filings that the lawsuit lacks merit and the patents aren’t valid and can’t be enforced.
Seacrest, the radio and TV producer and host of “American Idol,” is founder of closely held Typo, according to the company’s website.
The case is BlackBerry Ltd. v. Typo Products LLC, 14-00023, U.S. District Court, Northern District of California (San Francisco).
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