Would that be enough to get RIM off the hook?
RIM can implement
its workaround, iron out bugs and continue to provide its BlackBerry service,
but NTP still might be able to come back and sue RIM again, Meurer said. This is
known as the "doctrine of equivalents," which means even if the device or
software doesn't specifically infringe on the claims of a patents, it can still
be argued that the device infringes on the patent in general "if it performs
substantially the same function in substantially the same way to obtain the same
result," according to a famous patent case known as Graver Tank vs. Linde, which
is cited on patent attorney Robert Yarborough's Web site.
NTP's lead counsel, James Wallace of Wiley, Rein & Fielding, said that until RIM reveals the details of the workaround, there's no way to know whether it would be subject to the doctrine of equivalents. It's also possible that RIM might have come up with a workaround that falls outside the scope of the claims, but until lawyers have had a chance to review it, no one knows for sure, Wallace said.
So why doesn't RIM just implement this workaround and get on with
it?
Making a massive software change to a reliable wireless networking
system is not something that is done lightly. There are bound to be bugs that
could do anything from make the BlackBerry system go offline to make individual
e-mails disappear. It's a last-resort option.
In fact, RIM made this exact argument in its briefing to Judge James Spencer, arguing against the imposition of an injunction. "Implementing a workaround requires reloading software on servers and BlackBerry handheld devices. This would likely involve some serious effort on behalf of users and their supporting organizations, which will need to take time to implement the upgrades, and will likely experience typical problems experienced with undertaking upgrades," the brief reads.
Presumably, if the workaround is really part of RIM's long-term plans, it has begun testing the software with carriers and major customers. But given the secrecy surrounding the workaround, it's not clear that it's anything more than a smokescreen designed to mollify RIM's investors and customers.
Will RIM's competitors face problems like
this?
It's not clear whether any of the other software companies in this
market are free of the same patent troubles that have hurt RIM. Good Technology
was sued this week by Visto, which asserted Good was infringing on Visto's
patents. Good and RIM have sued each other before, claiming patent infringement,
but settled a few years ago. Visto is suing Microsoft, claiming Microsoft is
infringing on Visto's patents. Visto and Good have each signed a license to
NTP's patents, but are now tussling over Visto's patents.
All the companies are doing the same thing: delivering e-mail over a wireless network to mobile devices. Unless there's a broad licensing agreement, it's easy to envision a constant state of litigation in this market for the next several years.
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