Sun, Feb 26, 2006 - Page 11 News List

Judge puts BlackBerry ruling on hold

REPRIEVE A US judge on Friday ended a hearing over a request to grant an injunction against the maker of the BlackBerry communications device without issuing a decision

NY TIMES NEWS SERVICE , RICHMOND, VIRGINIA

Owners of BlackBerry wireless e-mail devices can continue to use them, at least for now.

A US federal judge declined on Friday to immediately shut down the service, which is at the heart of a long-running patent dispute, giving another reprieve to the company that makes the BlackBerry, Research in Motion, and its estimated 3.2 million customers in the US.

Judge James Spencer of US District Court in Richmond expressed disappointment that Research in Motion and the company that is accusing it of infringing its patents, NTP Inc, had not been able to reach a settlement.

"I am absolutely surprised that you have left this incredibly important and significant decision to the court," he said toward the end of an almost four-hour hearing on whether to issue an injunction, halting the use of the service in the US. "I have always thought that this decision, in the end, was a business decision."

The judge did not give a timetable for ruling on the injunction, nor did he indicate which way he is leaning, saying only that any legal decision would be "imperfect." He did say that he would first rule on damages owed by Research in Motion stemming from a jury verdict in 2002 that found the company infringed NTP's patents.

The hearing capped a week of verbal jousting between the two companies and came on the same day that Research in Motion, which is based in Waterloo, Ontario, said that it had received a final rejection notice from the US Patent and Trademark Office covering one more of the NTP patents at the center of the case. That decision, according to the company, means that all three NTP patents that are still related to the litigation have been found invalid.

While the patent office decision is final, NTP plans to appeal its findings to the Patent Office Board of Appeals. If the company disagrees with that body's finding, it can then take the issue to the federal court. The entire appeal process could continue for months, if not years. Spencer, however, has said the appeals will not influence the progress of the case he is overseeing.

"You've got this real disconnect between the skepticism that the patent office has shown toward NTP's applications and the judge's willingness to take these patents and give them a really broad interpretation," said Josh Lerner, a professor at Harvard Business School who has followed the case.

During the hearing, Spencer heard arguments from lawyers for both companies, as well as from a US Justice Department attorney, John Fargo, who represented the government's interest in the case. Numerous federal agencies use BlackBerry devices in addition to police and fire departments, not to mention bankers and brokers.

NTP asked the court for US$126 million in damages and an immediate injunction on existing users, with the exception of government and emergency personnel, as well as a halt to new sales and service.

"We want to keep you in business," said James Wallace Jr., who represented NTP. "It's just time to pay up. What we've got here is a squatter."

In the event of an injunction, Research in Motion has a workaround solution that would require close to 2 million hours to carry out, said Henry C. Bunsow, one of the company's lawyers.

"NTP's request for an injunction should be denied," he argued. "It will frustrate the public interest."

Although Spencer said the case should have been settled, he made it clear that he would accommodate the concerns voiced by the Justice Department. "If an injunction is ordered by the court, I want to make very sure that these exclusions and exemptions are met," he said.

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