BlackBerry fans have been holding their breath as a five-year intellectual property fight that could lead to the shutdown of their beloved mobile devices heads into its final weeks.
Lawyers for Research In Motion and patent holder NTP are scheduled to give final arguments later this month before a Virginia judge who could reimpose an injunction on the sales of BlackBerry devices in the U.S. NTP has won several court victories so far, but RIM has prevailed on the U.S. Patent and Trademark Office to call NTP's patents into question.
The case is being closely watched by the tech industry amid calls for patent reform and by anxious BlackBerry users wondering how they will keep the mobile e-mail flowing in the event of a shutdown. Just to spice things up, RIM claims that it has a "workaround" that could allow it to bypass NTP's patents simply by upgrading its software.
Why might I wake up one day in late March to a dead BlackBerry?
As
its patent-infringement defense against NTP winds down, RIM is scheduled to argue
on Feb. 24 against an injunction on the sale and support of BlackBerry
devices in the United States. After a jury
trial in 2002, NTP won
an injunction against RIM that was stayed in 2003 pending an appeals
process.
Various appeals courts have struck down a few portions of that original decision, but have agreed with most of the basic infringement claims and ordered the case returned to the lower court. Since the courts agreed that most of NTP's claims were infringed by RIM, NTP is expected to ask for an injunction. The company has agreed to give RIM's customers a 30-day window to switch to other providers and will allow RIM to continue providing the service to agencies of the U.S. government.
Who or what is NTP?
NTP is a holding company that exists to enforce
patents issued to the late
Thomas Campana, who founded NTP with his lawyer, Donald Stout, to capitalize
on his inventions. It has signed licensing deals with Nokia,
Good
Technology, Palm
and Visto.
Why does NTP want an injunction?
NTP doesn't make any products or
provide any services, so it won't benefit from shutting down RIM in the
competitive sense. But the cost that an injunction would pose to RIM, its
customers and investors is believed to be so prohibitive that many analysts
believe RIM will settle the case rather than risk angering its base.
RIM and NTP tentatively agreed to settle this case last March for US$450 million, but the deal fell through. It's believed a new settlement could fetch NTP as much as US$1 billion.
Why doesn't RIM just settle the case now?
Several reasons. There's
always the possibility the judge might decline to re-impose the injunction,
although legal experts won't bet on it given that the appeals court and trial
judge have both found that RIM is infringing on NTP's patents. On Thursday, the
Department of Justice weighed in and filed a brief arguing against an
injunction, saying that it will be very hard to ensure government access to the
service while denying the use of BlackBerry devices to others.
Separately, the U.S. Patent and Trademark Office is re-examining NTP's patents and has issued preliminary decisions striking down the patents at issue in the RIM case. The USPTO found new prior art, or evidence that somebody else had developed a method for sending wireless e-mail prior to NTP's patents. RIM expects the patent office to issue final actions on those patents against NTP. NTP can appeal those patents through the court system, including an appeals court that has already ruled in its favor.
But that could take several years to complete. If RIM settles the case or loses its argument against an injunction before the PTO appeals process runs its course, the company will still be on the hook for damages related to the original trial and for past-due royalties to NTP--even if the patents are later struck down. So RIM has also announced that it has developed a "workaround" for the NTP patents that it can implement with a software upgrade.
A workaround? How exactly does that
work?
Only those engineers who have to make it happen, and their bosses,
seem to know for sure. All RIM has said is that the workaround is based on
software, and it can be loaded onto new devices. Partners and carriers aren't
talking.
Any workaround would have to be far enough away from RIM's current technology that it would to avoid infringing upon the patents, but close enough to not cause a huge
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