BlackBerry maker Research in Motion maintains the legality of a long-awaited “workaround” that customers can implement if a federal judge rules against the company in a patent dispute and issues an injunction to shut down RIMs mobile e-mail service as it stands.
But the details that RIM released on Feb. 9 are still vague enough that lawyers cant say whether patent-holding company NTP, which is suing RIM, will go ahead and sue RIM for the workaround, too.
And industry observers have mixed feelings about whether they have enough information to determine the viability of the solution.
“They havent given enough details sufficient to comment,” said Kevin Alexander, an attorney with Wiley Rein & Fielding of Washington, one of the law firms that represent NTP. “Theyve said theyre keeping the technical details confidential.”
RIM has avoided releasing technical details so as not to tip a hand to NTP, but at the same time the company has been under pressure to answer to its customers by the end of the month; a federal judge has set a hearing date for Feb. 24, after which he could choose to issue an injunction shutting down the BlackBerry service as it stands.
RIM has received “a confidential and privileged legal opinion confirming that RIMs software workaround designs do not infringe any of the NTP patent claims remaining in the litigation,” and therefore would not be subject to a shutdown injunction, according to a prepared statement.
According to the details RIM released, the bulk of the changes in the workaround have to do with the way messages have been stored in RIMs network operations center.
Currently, messages are queued in the NOC when the BlackBerry device meant to receive them is not in the range of a network. With the workaround, messages would be queued in the BlackBerry Enterprise Server, the server software that sits behind a customers corporate firewall.
As the potential injunction would affect only U.S. customers, BlackBerry Multi-Mode Edition provides two modes of operation: Standard mode and U.S. mode.
According to an FAQ on RIMs Web site, “When users are outside the U.S., and receiving service from a non-U.S. service provider, the BlackBerry device operates in Standard mode and there are no changes to the current message delivery system or BlackBerry functionality.”
The paper also said that there would be changes to the e-mail delivery system, but did not detail them.
“After reviewing those documents, I didnt find any additional details on what it does and how it works,” said Alex Kogan, director of network and data center services at Boston Properties, a real estate company in Boston with a deployment of 170 BlackBerries.
“I personally think that this was their move to reassure customers that the solution is real and that the service will continue regardless of the outcome of the trial.
“It looks like the least intrusive option would be to implement US system for any new devices that are sold. In that case, the only thing that would need to be upgraded would be BES.”
Another customer was more hopeful.
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Can the Workaround Be
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“Ive read all the materials and my conclusions are [that the workaround is] seamless to the user after the initial software upgrade on the device, and that there is low impact on the IT infrastructure and staff; queuing at the BES should not require significant storage or CPU resources,” said John Halamka, CIO of Harvard Medical School and Caregroup Healthcare System, a Boston-area hospital group that supports some 800 BlackBerry devices.
“Im unsure if NTP or the judge in the case will find this workaround acceptable,” Halamka added.
RIMs own court filings indicate that implementing a workaround wont be easy.
“Implementing a workaround requires reloading software on servers and BlackBerry handheld devices,” reads a January 17 court briefing from RIMs legal team.
“This which 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.”
RIM goes on to note that customers might defect to other services rather than install any workaround, which may still be challenged by NTP.
Most of the carriers who sell BlackBerry service also sell competing services from companies such as Good Technology, Intellisync, Visto and Seven Systems.
But defecting is not cheap, especially for customers with large deployments. Industry consultant Jack Gold estimates a cost of $845,000 for a 1000-user organization, or $845 per user to migrate to another wireless e-mail system.
Still, he does not yet feel comfortable telling RIM customers to trust the workaround.
“If you look at just a software upgrade piece, if it goes smoothly, then thats obviously a best-case scenario,” said Gold, principal of J. Gold Associates in Northborough, Mass.
“If something goes wrong and it messes up the connection with the end users or doesnt like to talk to the NOC correctly, then youre talking about the potential of downtime, which could cost the company tens of thousands of dollars. Theres no way to know until this thing has been tried and tested.”
RIM will announce the process for downloading any necessary upgrades “at a later time,” a company statement said. The workaround software, should it be necessary, will be available free of charge.
Holding company NTP sued RIM 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.
Spencer stayed the ruling, however, pending appeal. Since then, the case has gone through several appeals and failed settlement attempts, although a settlement is still possible.
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, which would make the case 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 set another hearing date for Feb. 24, after which he could choose to issue an injunction shutting down the BlackBerry service as it stands.
