Typo, which makes add-on keyboards for iPhones, got off to a rocky start this year when a federal judge slapped it with a sales ban for violating BlackBerry patents. Now, the Ryan Seacrest-backed venture is in even bigger trouble.
On Thursday, U.S. District Judge William Orrick agreed to let BlackBerry proceed with contempt of court proceedings after the Canadian phone maker showed that Typo has been selling keyboards in violation of the earlier order.
“I am very concerned with what appears to be deliberate contempt of the preliminary injunction by Typo,” wrote Orrick, pointing out that the company shipped around 15,000 keyboards despite the ban. The judge imposed the ban in April after finding that the Typo design likely violated three of BlackBerry’s patents. Here is an image of the two devices side-by-side:
The bulk of the illegal shipments involved Typo sending keyboards to foreign retailers in Canada, the Middle East and Asia. The judge, however, also called attention to Typo’s sale of 4,008 units to a company related to SMI Investments after the injunction was ordered but before it took effect — suggesting that Typo was illegally working in concert with SMI to skirt the order.
The court order also calls attention to a Typo warranty program as a third way in which the company violated the order. According to the ruling, Typo illegally provided around 400 replacement keyboards to existing customers in the United States.
The judge also rejected Typo’s claims that the sales were not covered by the ban, calling its arguments “mistaken” and “beside the point.”
As a result of the findings, the judge said BlackBerry could continue investigations into Typo’s sales practices in order to obtain a so-called “show cause hearing” — a legal process that sets the groundwork for a contempt of court order.
Typo’s “redesigned” keyboard not relevant
Thursday’s decision also rejected Typo’s request for the court to find that redesigned versions of the keyboard does not infringe the Blackberry patents.
According to Orrick, the existence of a “supposedly non-infringing design” was not relevant to the existing injunction. The judge added that Typo would have to bring a separate court proceeding to get an order related to the new designs.
Court filings show a picture of the new designs next to the original one that is subject to the sales ban:
Typo says the new versions are different from BlackBerry’s patented version of the keyboard because they don’t have “features like horizontal frets, vertically aligned rows of keys, and keys with contoured surfaces and sculpted curves.”
Typo also notes the alignments are different, pointing out that the Typo version does not have the BlackBerry feature of “keys in rows that are vertically aligned with each other, and a left side of the keyboard having five keys in the middle row and four keys in the bottom row.”
The company’s website shows what appears to be the new design for sale as the “Typo 2 for iPhone 5/5s.” Here’s an image:
Here’s a copy of Thursday’s court ruling. I’ve underlined some of the relevant bits: