Bye-bye, BlackBerry?

A federal court hearing scheduled for Friday is inspiring fevered thumb-typists to ponder life without mobile e-mail. Photos: BlackBerry's big fans in D.C., Hollywood

Tom Krazit Former Staff writer, CNET News
Tom Krazit writes about the ever-expanding world of Google, as the most prominent company on the Internet defends its search juggernaut while expanding into nearly anything it thinks possible. He has previously written about Apple, the traditional PC industry, and chip companies. E-mail Tom.
Tom Krazit
A federal court hearing scheduled for Friday that could lead to the shutdown of BlackBerry devices throughout the United States is forcing longtime BlackBerry users to think about life without their mobile gadgets.

On Capitol Hill, where "CrackBerry" addiction is rampant, some thumb-typists are even expressing their anxiety in poetry. "'Freedom!' will the joyful say, Released from slavery today! Yet others'll suffer horrid angst if their little screens go blank," Larry Neal, deputy staff director for communications at the U.S. House of Representatives' Energy and Commerce Committee, wrote in an 18-line poem.


Tongue-in-cheek poetry aside, to millions of BlackBerry users, there's nothing funny about Friday's court hearing, which could draw to an end one aspect of the long-running patent spat between Ontario-based Research In Motion and Virginia-based patent-holding firm NTP.

At the hearing in U.S. District Judge James Spencer's Richmond, Va., courtroom, lawyers for NTP, RIM and the federal government will argue over whether to "="" data-asset-type="article" data-uuid="24a5e915-fedc-11e4-bddd-d4ae52e62bcc" data-slug="jury-rim-infringed-on-patents" data-link-text="won a jury verdict"> that found that BlackBerry devices and software infringed on patents held by the late Thomas Campana, co-founder of the holding company. An injunction later arrived with that victory, but it was stayed and the damages were put in escrow pending the appeals process, which ended at the Supreme Court's door earlier this year. Given that the fundamental question of infringement has withstood the appeals process, NTP will ask for another injunction during Friday's hearing.

"I'm shocked that RIM hasn't settled," said Gary Abelev, a patent attorney with the New York law firm Dorsey & Whitney. The company had the opportunity to settle the case for $450 million last year, but that deal fell through. An injunction would prevent the sale of RIM's primary source of revenue in its largest market, effectively crippling the company.

RIM's answer to a possible injunction is a so-called workaround. The company earlier this month revealed sketchy details of the software-based workaround it says will be made available for download if an injunction occurs.

NTP is likely to argue that the workaround violates the same claims in the patents, and numerous hearings will probably follow, Abelev said. If the workaround is declared invalid, RIM is back to square one with nothing to show for millions in legal fees, he said.

RIM's other hope is that the U.S. Patent and Trademark Office strikes down all of NTP's patents. The BlackBerry received a boost Wednesday when the USPTO issued a final rejection of one of the five patents in question, but NTP can appeal that decision through several more avenues, extending the case even further.

Watching and waiting
On Capitol Hill, all 100 senators, 435 House members and myriad staffers tote BlackBerrys. "It might be a nice change," said one Senate aide, who asked to remain anonymous. "Instead of looking at my BlackBerry the first thing in the morning, I might actually be able to take a shower without work on my mind."

Lawyers at the Los Angeles law firm Allen & Matkins are less amused at the prospect of losing their BlackBerrys. The firm's chief technology officer, Frank Gillman, is counting on RIM's workaround to keep his legal team in contact with clients, he said in an e-mail interview.

"We believe that switching to another vendor at this point would be just as complex, if not more so because of additional training and device configuration testing, than to implement BlackBerry's announced workaround," Gillman wrote in an e-mail to CNET News.com. "We also believe that, overall, BlackBerry is still the best-of-breed solution in this space so we feel it would be a backward step to move from that platform."

A number of government users said they're counting on assurances that the public sector will get a reprieve allowing it to stay online, even if their corporate counterparts lose access. NTP specified that government users should be exempt from its injunction in briefs leading up to Friday's hearing, in order to assuage concerns that BlackBerry service would be interrupted in the event of a national emergency.

"My understanding, for governmental entities, is that they are going to be held harmless, so it's really not an issue for the members of Congress and their staffs and the federal government and local governments," said John Brandt, communications director for the House Administration Committee, which in 2001 headed up the initial post-Sept. 11 purchase of BlackBerrys for all House members and select key staffers.

The trouble is, such an exemption may not be grounded in reality. RIM reportedly has denied the feasibility of keeping government BlackBerrys functional while shutting out other users. The Justice Department also argued in a brief filed recently with the district court that it, too, was not convinced such a remedy would work. Judge Spencer on Tuesday denied the department's bid to hold a separate hearing on the issue, although it will get to have its say in court on Friday.

IT gurus are also carefully eyeing RIM's proposed solution to the injunction.

"They tell us it would be a simple upgrade to our server environment, but we hear that all the time, so we kind of are cautious about anyone who tells us about a 'simple upgrade,'" Thomas Jarrett, Delaware's chief information officer, said in a telephone interview. About 300 of the state's "high-end" officials, ranging from the governor's top aides--though not the executive herself--to state legislators to emergency responders, rely heavily on the devices, and the state operates its own BlackBerry server, he said.

The impact on government users will be determined in the hearing Friday.

One thing that's clear about Spencer's mindset is his desire to put this case to bed. "This court cannot and will not grant RIM the extraordinary remedy of delaying these proceedings any further than they already have been based on conjecture," he wrote last November in denying RIM an extension of the case pending the patent reexamination process.

Still, Jarrett acknowledged, "I'm not so sure we'll panic." Up until two years ago, Delaware state officials lived without BlackBerrys, he noted. "I'll be the first to admit I struggled a bit without it, but if forced to, I'd probably learn to live without it again."