I Want My BlackBerry

By ERIC J. SINROD

Thursday, Dec. 08, 2005

I have a confession to make. I am addicted to my BlackBerry. So for me, it really is a "CrackBerry." Is it true that a recent court ruling threatens Berry junkies like me with a possible shutdown of BlackBerry wireless email service? Perhaps each junkie soon will be howling to the wind: "I want my BlackBerry" (sung to Dire Straits' 80s melody "I want my MTV"). Let's explore.

The Underlying Lawsuit

A small company called NTP, Inc. filed a lawsuit against Research in Motion, Ltd. (RIM), the maker of the BlackBerry, in federal court in Virginia way back in 2001. In a nutshell, NTP alleged that RIM's BlackBerry wireless email devices and services infringed several dozens of NTP's patent systems and methods.

A lengthy trial ensued a year later, and in November 2001, a jury returned a verdict in favor of NTP and adverse to RIM. After further legal proceedings, the trial judge entered a final judgment in August, 2003. In addition to monetary damages, the judge entered a permanent injunction against RIM, which effectively could have halted RIM's BlackBerry service. However, the injunction was stayed pending RIM's potential federal appeal.

The Appeal and Later Proceedings

Not surprisingly, in this bet-the-farm case, RIM did file an appeal with the Federal Circuit Court of Appeals. The appellate court ultimately issued a ruling in August 2005. That ruling affirmed part, reversed part and vacated part of the trial court judgment. With instructions from the appellate court, the case was remanded back to the trial court for further proceedings consistent with the ruling of the appellate court.

RIM immediately sought a stay of further trial court proceedings on the basis that the Patent and Trademark Office (PTO) is engaged in an ongoing reexamination of NTP's patent rights.

Denial of the Stay

The trial court, in a very recent memorandum opinion and order dated November 30, 2005, emphatically denied RIM's stay motion. In so doing, the court noted that this was the latest of four attempts by RIM to stay NTP's lawsuit, and pointed out that the three prior efforts were unsuccessful.

The trial court then rejected RIM's argument that the lawsuit should be stayed because the PTO would conclude its reexamination of NTP's patent rights in the next few months with the "highly likely" result that NTP's patents would be invalidated.

The court held as a matter of law that it is not obligated to stay a pending lawsuit simply because of an ongoing PTO patent reexamination. The court next found that it was very "speculative" to assume that the PTO reexamination would conclude in just a few months. Indeed, the court stated that that process could potentially last years.

Finally, the trial court did not buy the argument that the NTP patents likely will be invalidated. Indeed, the court stated: "Valid patents would be rendered meaningless if an infringing party were allowed to circumvent the patents' enforcement by incessantly delaying and prolonging court proceedings which have already resulted in a finding of infringement." Ouch.

What's Next?

According to news reports, there have been settlement negotiations between the parties. Perhaps this latest development will cause RIM to offer more money to NTP to make this legal matter go away and to allow RIM to continue with its BlackBerry service. To the extent the case does not settle and the legal proceedings go badly for RIM, RIM has stated in the press that it apparently is preparing non-infringing technology to permit its wireless service to continue uninterrupted. Of course, that remains to be seen. Maybe RIM will take another run up to the appellate court in a further effort to seek a stay. And who knows, maybe Congress somehow will get into the mix, as many Beltway folks are Berry junkies (like your author). If none of this works to keep BlackBerries going, at some point other wireless providers such as Palm (can you say PalmCrack?) could see an exodus in their direction.


Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is (www.sinrodlaw.com), and he can be reached at [email protected] To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to [email protected] This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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