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BlackBerry dispute may keep going and going and...

Attorney Eric Sinrod says RIM's work-around could spawn entirely new patent issues to fight about with NTP.

    Unless you've been living on a remote island, you must be aware that Research In Motion has been grappling with a patent infringement lawsuit filed by NTP over RIM's BlackBerry service. RIM lost at the trial court level, and there was a mixed result on appeal. The case has been sent back to the trial court for further proceedings. The Patent and Trademark Office has also invalidated some of the patents being claimed by NTP.

    This makes for an interesting context as we approach Feb. 24--the date on which the trial court will consider whether to enter an injunction against RIM. Company executives have reaffirmed their bullish belief that RIM's BlackBerry service will not be enjoined. But just in case, RIM announced recently what it called a noninfringing "work-around" that would allow the BlackBerry service to continue notwithstanding an injunction based on any of NTP's remaining patents.

    Jim Balsillie, RIM's chairman and co-CEO, described the work-around as a contingency for customers and partners and a "counterbalance to NTP's threats." His confidence reflects the company's belief that work-arounds constitute a legitimate strategy the courts allow as a means to avoid infringement.

    RIM notes that there are nine claims relating to the three NTP patents still in dispute. But the company maintains that the claims would potentially only affect certain aspects of the BlackBerry products and services. RIM says it has since reworked the underlying BlackBerry message-delivery technology so that it works around the NTP patent claims. In doing so, RIM told its customers (and Wall Street) that the work-around would have no impact on the functionality or performance of the BlackBerry service.

    RIM says it has received a confidential legal opinion confirming the legality of its software work-around designs.

    To allay concerns that the work-around can't cure potential infringement, RIM says it has received a confidential legal opinion confirming the legality of its software work-around designs. Meanwhile, RIM says it has also filed new patent applications with the patent office to cover its work-around plans.

    So, where are we going with all this?

    It's possible that invalidation of NTP's patents will cause the court not to enter an injunction against RIM. However, even if an injunction is entered, it is becoming increasingly clear that the decision would not affect governmental workers and emergency personnel. Moreover, there likely would be a phasing period that would allow customers sufficient time to migrate to a different wireless e-mail provider.

    Of course, RIM now takes the position that customers would not need to migrate even with an injunction in place, as the work-around apparently would enable BlackBerry service to continue without infringing any of NTP's remaining patents. That position is based on a legal opinion received from RIM's counsel.

    Such legal opinions are not sacrosanct. It could be correct, and it's likely that company lawyers spent quite a bit of time and effort and used considerable skill and expertise to form that opinion. But NTP very well could disagree with the conclusion and seek a judicial determination as to whether the work-around truly allows RIM to escape the ambit of NTP's patents. This could spawn entirely new patent issues for the two companies to fight about. With so much at stake, unless RIM and NTP reach a settlement, the legal warfare between the two companies could go on for quite some time.