The U.S. Patent and Trademark Office this week rejected two of five patents at the center of the legal battle that threatens to shutter BlackBerry e-mail service in the United States.
This marks three times in the past month and twice in two days that the USPTO has issued a negative ruling on a disputed patent from NTP Inc., the patent-holding company that sued BlackBerry maker Research in Motion Ltd. for patent infringement in 2001.
U.S. District Judge James Spencer ruled in favor of NTP in 2003, instructing that RIM halt its sales of BlackBerry devices and services in the United States until NTPs patents run out in 2012.
He stayed the ruling, though, pending appeal. Since then, the case has gone through several appeals, and RIM is trying to take the case to the Supreme Court.
In the meantime, the USPTO has been evaluating the validity of NTPs patents. The patent office initially rejected NTPs claims in March, and it has been re-evaluating them for months. And RIM has been trying to persuade the courts to stay any final ruling until the Patent Office finishes its evaluation.
While this latest rejection is good news for RIM, it is a "non-final" office action, meaning that NTP can appeal it. In its ruling, the Patent Office indicated that the next ruling would be a final action.
RIM officials have remained publicly confident.
"The PTOs going to shut this down in a couple of months," Jim Balsillie, chairman and co-CEO of RIM told eWEEK last month. "Though NTP can take an appeal to the courts from there, for all intents and purposes, their patents are finished at that point."
Judge Spencer disagrees. Last month he officially denied RIMs request to stay an injunction to shut down BlackBerry service, 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 most recent 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."
But he has yet to carry through with an injunction. And the waiting game continues: waiting for a decision from the courts, waiting for the Patent Office to rule on all five disputed patents, and waiting for a possible financial settlement between RIM and NTP.
RIM maintains that the company has tested and readied a legal technical workaround just in case the judge goes through with an injunction before the Patent Office makes its ruling, but industry observers are waiting for the details of that workaround, too.
Technology consultancy Gartner Inc. recently issued a statement advising prospective BlackBerry customers to hold off on new deployments until the parties in question shed a little more light on the situation.
Gartner plans to issue another advisory about BlackBerry deployments in January.
"I dont know what Im going to say yet," said Ken Dulaney, vice president of mobile computing at Gartner, in San Jose, Calif. "We dont know where the hell this is going to go."