Perspective: I want my BlackBerry

By Eric J. Sinrod

Published: December 7, 2005, 4:00 AM PST

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I have a confession to make: I am addicted to my BlackBerry. So for me, it really is a CrackBerry.

Is it true that a recent court ruling threatens Berry junkies like me, with a possible shutdown of BlackBerry wireless e-mail service? Perhaps each junkie soon will be howling to the wind: "I want my BlackBerry" (sung to the '80s melody "I want my MTV"). Let's explore.

A small holding company called NTP filed a lawsuit against Research In Motion, the maker of the BlackBerry, in federal court in Virginia back in 2001. In a nutshell, NTP alleged that RIM's BlackBerry wireless e-mail devices and services infringed several dozen NTP patent systems and methods.

A lengthy trial ensued a year later, and in November 2002, a jury returned a verdict in favor of NTP. After further legal proceedings, the trial judge entered a final judgment in August 2003. In addition to monetary damages, the judge entered a permanent injunction against RIM, which effectively could have halted RIM's BlackBerry service. However, the injunction was stayed pending RIM's potential federal appeal.

Maybe Congress somehow will get into the mix, as many Beltway folks are Berry junkies.

Not surprisingly, in this bet-the-farm case, RIM did file an appeal with the Federal Circuit Court of Appeals. The appellate court ultimately issued a ruling in August 2005. That ruling affirmed part, reversed part and vacated part of the trial court judgment. With instructions from the appellate court, the case was remanded back to the trial court for further proceedings consistent with the ruling of the appellate court.

RIM immediately sought stay of further trial court proceedings on the basis that the U.S. Patent and Trademark Office is engaged in an ongoing re-examination of NTP's patent rights.

Denial of the stay
The trial court, in a recent order dated Nov. 30, emphatically denied RIM's stay motion. In so doing, the court noted that this was the latest of four attempts by RIM to stay NTP's lawsuit and pointed out that the three prior efforts were unsuccessful.

The trial court then rejected RIM's argument that the lawsuit should be stayed because the Patent Office would conclude its re-examination of NTP's patent rights in the next few months with the "highly likely" result that NTP's patents would be invalidated.

The court held as a matter of law that it is not obligated to stay a pending lawsuit simply because of an ongoing patent re-examination. The court next found that it is very "speculative" to assume that the Patent Office re-examination would conclude in just a few months. Indeed, the court stated that the process potentially could last years.

Finally, the trial court did not buy the argument that the NTP patents likely will be invalidated. Indeed, the court stated, "Valid patents would be rendered meaningless if an infringing party were allowed to circumvent the patents' enforcement by incessantly delaying and prolonging court proceedings which have already resulted in a finding of infringement." Ouch.

What's next?
According to news reports, there have been settlement negotiations between the parties. Perhaps this latest development will cause RIM to offer more money to NTP to make this legal matter go away and to allow RIM to continue with its BlackBerry service.

To the extent that the case does not settle, and the legal proceedings go badly for RIM, executives indicated to the press that the company is preparing noninfringing technology to permit its wireless service to continue uninterrupted. Of course, that remains to be seen.

Maybe RIM will take another run up to the appellate court in a further effort to seek a stay. And who knows? Maybe Congress somehow will get into the mix, as many Beltway folks are Berry junkies.

But if none of this works to keep BlackBerrys going, at some point other wireless providers such as Palm (can you say PalmCrack?) could see an exodus in their direction.

Biography

Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. The views expressed in this column do not necessarily reflect those of Sinrod's law firm or its individual partners.

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