Lawyers for BlackBerry maker Research In Motion continue to argue that a BlackBerry shutdown would be detrimental to the public good.
This is a sentiment echoed by the U.S. Department of Justice, which plans to have a presence at the Feb. 24 hearing, and by eBay, which is facing a similar patent infringement case of its own.
Lawyers for patent-holding company NTP argue that RIM should be prohibited from selling BlackBerry devices unless RIM agrees to license NTPs patents.
In fact, the future of the patents themselves hangs in the balance, as the U.S. Patent and Trademark Office re-evaluates the contested patents that it originally granted to NTP, but has since proceeded to reject them.
On Feb. 23, the U.S.P.T.O. denied NTPs petition that sought to remove a Feb. 1 ruling in which the Patent Office issued a "non-final rejection" of the fifth patent at the center of the legal battle. In other words, that rejection still stands.
On Feb. 22, the U.S.P.T.O. issued a final rejection for another of the patents.
In fact, the office made it clear in public statements that it plans to reject all of the patents—eventually.
If this happened, NTPs case against RIM would be moot. And RIM officials continue to maintain that this will happen—eventually.
But the final Patent Office review process could take several months, according to several industry experts—including the judge who is hearing the case.
In November 2005, Judge James Spencer of the Eastern District Court of Virginia officially denied RIMs request to stay a possible injunction pending the Patent Offices decision.
"The Court is not persuaded that the PTO will issue final actions in RIMs favor within the next few months, as RIM asserts," he wrote in his November ruling.
"Even in the unlikely event that all final office actions were taken in the next few months, NTP, if not satisfied, could appeal the PTOs findings. Reality and past experience dictate that several years might very well pass from the time when a final office action is issued by the PTO to when the claims are finally and officially confirmed after appeals."
And so, barring an eleventh-hour settlement, Spencer will hear the case again at 9 a.m. on Feb. 24.
In the days before the hearing, RIM supporters have filed several amicus briefs from several concerned parties who dont want to see their BlackBerrys go.
Most recently, Spencer received a letter from Skadden, Arps, Slate, Meagher and Flom LLP, the firm that represents online auction giant eBay in a similar patent infringement case, which threatens the future of eBays "buy it now" feature.
The Supreme Court is due to hear eBays case on March 29. But the Supreme Court declined to hear RIMs case, after years of appeals.
NTP sued RIM for alleged patent infringement on nine wireless e-mail patents in 2001.
Spencer ruled in favor of NTP in 2003, instructing RIM to halt its sales of BlackBerry devices and services in the United States until NTPs patents run out in 2012.
Spencer stayed the ruling, however, pending appeal. Since then, the case has gone through several appeals and failed settlement attempts.