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The Research in Motion and NTP patent dispute continues its meandering path toward a resolution as the U.S. Supreme Court refused to hear an appeal, and a federal court judge set Feb. 24 as a key hearing date.
On Jan. 23, the Supreme Court said it would not hear an appeal in the ongoing battle that has loomed over BlackBerry customers for years.
Then, two days later, a federal judge set a Feb. 24 hearing date in the Eastern District Court of Virginia to consider a possible injunction that could shut down BlackBerry wireless e-mail service in the United States.
Whats next? More court hearings. More big headlines. And more big questions facing enterprises as managers ponder what it will mean for business if the BlackBerry service goes bust.
With that in mind, heres an FAQ to help you map out a plan.
Whats the back story?
Holding company ntp sued Canadian BlackBerry maker RIM in 2001 for alleged patent infringement on nine wireless e-mail patents.
U.S. District Judge James 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.
In the meantime, the U.S. Patent and Trademark Office has been re-evaluating several of the disputed patents. The USPTO has indicated that it intends to reject all NTPs claims eventually, which would render the lawsuit null and void. Industry experts say the process could take several months, though, as NTP has voiced plans to appeal every decision it can.
Since Spencer ruled against RIM, NTP has secured patent licensing deals with several of RIMs competitors in the remote access software industry, including Nokia in June 2004, Good Technology in March 2005 and Visto in December 2005.
“RIM refuses to take a license and pay NTP,” said Kevin Anderson, an attorney with Wiley Rein & Fielding, of Washington, one of the law firms representing NTP. “If someone camps on your front lawn and refuses to pay you, you have no choice but to seek assistance in removing the squatter.”
How ugly could this get?
Very. of the 4.3 million blackBerry customers worldwide, 75 percent are in North America. For those customers, the worst thing in the near term would be for Spencer to shut down BlackBerry sales and services in the United States, which could happen after the Feb. 24 hearing.
“While removing BlackBerry support from my life does seem very appealing, the truth is this service has become an integral part of our day-to-day business operations,” said Nick Gass, IT manager at Color Kinetics, a digital lighting company in Boston. “Our sales team relies on their BlackBerry devices as their primary means of contact, and our executive team uses them to an almost manic degree. BlackBerrys have become practically indispensable.”
Should an injunction occur, customers would likely get some time before a shutdown. In a recent court filing arguing for the injunction, aiming to sound reasonable, NTP recommended that BlackBerry customers be given a 30-day grace period.
Is there a real workaround?
RIM maintains that it has tested and readied a legal technical workaround solution that would let the company continue offering its mobile e-mail service even if the judge orders an injunction before the USPTO rules.
In an earnings call in late December, RIM Chairman and Co-CEO Jim Balsillie said the company will reveal details of a workaround “very soon” that it could ship latent in future products.
“Nobody knows,” said Alex Kogan, director of network and data center services at Boston Properties, a real estate company in Boston with a deployment of 170 BlackBerrys. “NTP is saying theres no solution that will work without defying the patent. Its kind of a waiting game.”
Will it be pain-free?
Probably not.
“Implementing a workaround requires reloading software on servers and BlackBerry handheld devices,” reads a Jan. 17 court briefing from RIMs legal team. “This would likely involve some significant 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.”
And any workaround may still be challenged by NTP. “Injunctions cover all products not colorably different from the enjoined product,” said Anderson.
“So, if the workaround is merely to take an existing BlackBerry and call it a RedBerry, then that product would be in contempt,” Anderson said.
Do I need a backup plan?
A backup plan certainly wouldnt hurt, and its a good idea to be aware of alternatives.
John Halamka, CIO of Harvard Medical School and Caregroup Healthcare System, a Boston-area hospital group that supports some 800 BlackBerry devices, has explored alternatives, even though he thinks RIM will prevail. “As risk mitigation, Ive tested alternatives such as the [Palm] Treo 700, and they just do not work as well as BlackBerry for high-volume e-mail users—600 e-mails a day for me,” said Halamka.
Also, remember that RIMs rivals may not be above scare tactics.
On Dec. 9, the Boston Properties IT team received an e-mail with the subject header “BlackBerry Shutdown at Boston Properties, Inc.” The sender: the chief software architect at Mobiliam, a mobile computing software company that competes with RIM.
One IT manager told eWEEK that while he plans to keep supporting about 700 BlackBerrys on his companys network, he also is rolling out a separate server from Good Technology and buying about 10 Treo 700 devices for the top executives. In case of a BlackBerry shutdown, these executives will be taken care of immediately, and an alternate server will be in place for future Treo deployments.
Will RIM and NTP make up?
RIM and NTP almost made peace in the past. In March 2005, the companies announced a settlement deal worth $450 million, but the deal fell apart a couple of months later when the companies failed to agree to terms.
Recently, NTP has proposed various licensing plans in court briefings, but RIM officials remain publicly confident that the USPTO will reject the NTP patents. Still, many customers are banking on the companies making nice.
“Were confident that there will be a settlement,” Kogan said. “RIM wont shut down for that many customers. It would kill their business.”