NTP slams RIM on eve of crucial hearing

BlackBerry maker calls patent-holding company's lambasting statement a "shameless diversionary tactic."

Tech Industry
BlackBerry maker Research In Motion has repeatedly mischaracterized the validity of disputed NTP-held patents and wielded political influence to advance its position, the patent-holding company charged Thursday.

The Virginia-based company issued the allegations in a press release on the eve of a much-anticipated court hearing before a federal judge in Richmond, Va. At Friday's proceedings, lawyers for NTP, RIM and the federal government will argue over a possible injunction that could shut down most BlackBerry sales and service in the United States. They will also discuss the amount of damages due to NTP from RIM.

NTP successfully sued RIM for patent infringement in 2002 and won an injunction, stayed pending appeal, to halt most sales of RIM's BlackBerry wireless e-mail device and service in the United States.

While the case has worked its way through the court system, the U.S. Patent and Trademark Office began re-examining the validity of NTP's patents.

RIM arguably received a boost on Wednesday, when the Patent Office issued a final rejection of one of the five patents in dispute in the long-running case. The Patent Office has previously issued "non-final" rejections on all of the patents.

But the Patent Office's latest step is far from the final say in the matter, NTP argued Thursday. "RIM's assertions that the patents have been invalidated are flatly wrong," the company said in its statement. That's because NTP can--and is expected to--appeal the final rejection to the Patent Office's board of patent appeals and, if necessary, a federal appeals court.

RIM was quick to dismiss its opponent's claims, calling the press release a "publicity stunt" and a "shameless diversionary tactic." "It won't change the fact that the patents have been soundly rejected despite NTP's attempts to obstruct the process," Mark Guibert, the company's vice president of corporate marketing, said in a statement sent to CNET News.com.

NTP also lashed out at RIM for allegedly using "its money, power and political influence to overcome its complete defeat in the court system and to inappropriately influence the U.S. Patent Office process." The company charged that the patent re-examinations resulted from negotiations between the Patent Office and RIM's lobbyists, one of whom it described as a former high-ranking Patent Office official, though it said it has been "denied access" to those communications.

"Permitting patent re-examinations to be influenced by lobbying efforts of a losing willful infringer destroys fairness in the patent system for any and all companies," the company said.

In its wide-ranging list of grievances, NTP also argued that the Patent Office failed to fulfill its own request to expedite the patent re-examination process when Thomas Campana, the inventor to whom the disputed mobile e-mail patents are credited, was on his deathbed in 2004. "We begged them to please expedite things, and they promised to do it, but then they gave it to new examiners, and they apparently had a different agenda," James Wallace, NTP's lead counsel, said in a telephone interview.

RIM co-Chief Executive Officer Jim Balsillie sarcastically fired back during a conference held by RBC Capital Markets on Thursday.

"I have so much power over the U.S. government that I persuaded them to wait three years to do office actions on a director-initiated re-examination. If I had so much power this would have been done two years ago," Balsillie said.

The delay was one of several "irregularities" the Patent Office has committed during the re-examination process, NTP said. It added that the office has handled its situation "vastly differently" than it has treated other companies embroiled in similar patent conflicts and that the re-examination process should have ended when a jury ruled in NTP's favor in 2002.

Patent Office spokeswoman Brigid Quinn said the company's allegations are "unfounded" and that the agency "is re-examining the NTP patents in accordance with all applicable rules and laws."

Many of NTP's assertions do have merit, at least in theory, said patent attorneys closely eyeing the case.

"The NTP patents survived trial, so it's true that these patents are valid," Jonathan Caplan, a partner in the intellectual property department at Kramer Levin Naftalis & Frankel in New York, said in a telephone interview. "The issue today ultimately is whether the patents will survive the re-examination proceedings."

Thursday's press release is clearly a pointed public relations tactic intended to boost the company's standing among critics who have painted it as a "patent troll," said Greg Sueoka, chairman of the patent law group at Fenwick & West in San Francisco.

But both sides are guilty in their own ways of skewing the patent tussle to serve their interests, Sueoka said. "The spin on the RIM side is that the patents are invalid, and the spin on the NTP side is that RIM has had its day in court, which is true, and it's not entitled to re-examine the patents, which is not true."

CNET News.com's Tom Krazit contributed to this report.

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