The U.S. Justice Department on Feb. 1 asked a federal judge to refrain from an injunction shutting down BlackBerry e-mail service until government workers can be assured that they will be exempted from a possible shutdown.
But meanwhile, BlackBerry maker Research in Motion maintains that it would be difficult, if not impossible, to keep the BlackBerry service running for some customers and not others.
“We believe that there are still a number of serious questions to be answered as to how an injunction can be implemented so as to continue BlackBerry service for governmental and other excepted groups,” the Justice Department said in a legal brief filed to a federal court in Virginia, where RIMs fate hangs in the balance.
Holding company NTP sued Research in Motion for alleged patent infringement on nine wireless e-mail patents in 2001. 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.
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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 for months. The USPTO has indicated that it intends to reject all of NTPs claims eventually, in which the case would be null and void.
Industry experts said the process could take several months, though, as NTP has voiced plans to appeal every decision it can. To that end, Spencer has said that he doesnt plan to wait for the Patent Office. He has set a hearing for Feb. 24.
Both RIM and NTP filed briefings to the court on Feb. 1. Aware that BlackBerries are prevalent among Federal employees, NTP repeated its previous contention that the injunction it is seeking should exclude government workers.
Bolstered by the DOJ filing, RIM argued that a shutdown injunction would hurt the public good even if there were exemptions. NTP essentially accused RIM of promoting mass hysteria.
“This injunction shall not apply in any aspect to products or services used by the United States government, or for the United States government with its authorization and consent, or by any state or local government, the twelve regional Federal Reserve Banks, or certified nongovernmental first-responder entities including the Red Cross, ambulance service operators, utility company service crews, volunteer fire departments or other emergency services,” reads a Feb. 1 filing from NTPs legal team.
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RIM argues that its not that simple.
“Although NTP suggests that such users can easily be excluded from an injunction, in reality it would be extraordinarily difficult, if not impossible, for the Court to devise, implement and continue to administer any injunction that would not disrupt or diminish the use of BlackBerry devices by the mass of BlackBerry users that NTP concedes should not be exempt,” reads a Feb. 1 court filing from RIMs legal team.
RIMs filing goes on to argue that it would be difficult for wireless carriers to maintain a “white list” of excluded BlackBerry users.
“Needless to say, the formidable logistical difficulties presented by having to identify and verify the continuing status of excluded or included users from among the tens of thousands of governmental agencies, government contractors and subcontractors, and other companies and organizations that would be, or should be, exempt are prohibitive,” the filing reads.
The filing goes on to argue that BlackBerries have become critical tools for customers in both the public and private sector, and customers have filed declarations on RIMs behalf.
John Halamka, CIO of Harvard Medical School and Caregroup Health System hospital group in Boston, maintains that BlackBerries are integral to his emergency response plans.
Halamka is also chair of the national HITSP (Healthcare Information Technology Standards Panel), appointed by Secretary of Health and Human Services Mike Leavitt.
“I have been planning the hospitals response to an outbreak of avian flu,” said Halamka, in a filing to the federal court. “In such an emergency, quarantines affecting significant numbers of people are quite possible, and the ability of medical and management personnel to travel could be significantly curtailed.
“At present, one of the key aspects of our response is BlackBerry communication. Such communication can continue unabated even if transportation is impossible, or even if the hospital should be quarantined.
“Without BlackBerry communications, our emergency planning in this area would be severely hampered. In the event of a pandemic, the health care consequences could be catastrophic.”
NTP said that RIMs public interest argument is “unseemly.”
“RIM devotes the bulk of its opening presentation to an effort to invoke so-called public interest reasons to oust NTP from its constitutional/statutory right to protect its intellectual property by exclusion,” read NTPs Feb. 1 filing.
“This argument, supported by a flood of Chicken Little affidavits from RIMs officers, platform dependent software developers and customers, hardly becomes RIM.
“It is RIM, after all, that placed 3 million of its customers in jeopardy by selling them BlackBerry products after being adjudged a willful infringer,” read the NTP filing.