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Thursday, December 08, 2005
Is the "Crack"berry going to die a quick death? That depends on how Judge James Spencer rules, according to the Wall Street Journal:
The fate of the popular email device is in the hands of an impatient and stern decision maker who doesn't tip his hand before making key rulings. His court operates in the hurry-up tradition of Virginia's Eastern District.
(Judge Spencer's) demonstrated irritation with RIM's attempts to thwart a patent infringement suit filed by NTP Inc., a Virginia patent holder, has some observers fearing a service-halt when he next takes up the case in the coming weeks. Of course, RIM could yet agree to a settlement with NTP. The two had a preliminary agreement fall apart earlier this year.
A RIM executive said yesterday that the companies have held talks in recent days. "RIM and NTP had been communicating with each other through the court-appointed mediator," said Mark Guibert, RIM's vice president of corporate marketing, who declined to provide details. "RIM expects to continue communications," he said.
This week, technology consulting firm Gartner Inc. recommended customers hold off BlackBerry investments. A promised technology "workaround" that RIM says will bypass NTP's patents is "problematical" and RIM's "history in the courts does not inspire confidence," Mr. Gartner said.
Judge Spencer has expressed annoyance with RIM's efforts to postpone a ruling on halting sales of the service. "I have spent enough of my time and life involved with NTP and RIM," he said last month, promising to ''move swiftly" on the case. He has also let the companies know that he won't be swayed by factors outside the law.
The stakes are high. RIM has more than four million BlackBerry subscribers, mostly in the U.S. Investors have bid up RIM's market capitalization to about $11.7 billion, on the expectation that many millions more subscribers will sign up in the coming years.
NTP says case law calls for a BlackBerry ban, and it wants RIM to pay NTP likely in the hundreds of millions of dollars to settle the case to avoid a BlackBerry shutdown. RIM says a ban isn't appropriate, given the preliminary patent office decision and the public consequences of shutting down its service.
Even with a ban, RIM says it will keep BlackBerries running with newly developed "workaround" technology that bypasses NTP's patents. "We expect our customers will be taking advantage of that" if necessary, says a spokesman for Cingular Wireless, one of the biggest BlackBerry service providers in the U.S. He declined to say if Cingular has tested RIM's workaround technology.
RIM officials decline to discuss details of the workaround or the company's legal strategy. NTP says it will challenge in court any workaround RIM proposes to use.
Judge Spencer also has said he's not going to hold up court proceedings for further patent-office rulings. What's more, NTP recently sought to add more than 32,000 claims to its patents, but backed off most.
If the judge calls for a service halt, RIM could immediately appeal any ban to the appeals court, which may be more inclined to postpone the ban. But the appeals court would have to side with RIM instantly, since observers say RIM can't afford even a brief BlackBerry shutdown.
Now, this case has quite a bit of relevance to me since I have to support several Blackberry users, and if the service is forced to shut down, I'll be hearing directly from some irate users. I don't profess to know the interworkings of this lawsuit, and since I don't, a couple of questions keep occurring to me.
What right does NTP have to force Blackberry to shut down if they discontinue their use of the alleged patented technology? Wasn't that their complaint to begin with?
I understand the judge's impatience with both this case, and with RIM, but shouldn't he consider the "external factors" like the fact that the USPTO has already thrown out one of NTP's main patent claims? Shouldn't factors such as these render NTPs claims moot? How can NTP claim a violation against a patent that doesn't exist?
Perhaps my questions are naive, but I haven't seen anyone address them articulately.
Either way, I am no Blackberry apologist. I think the handhelds are poorly designed, and they lack the ubiquitous choices of third-party software that Palm handhelds have.
Besides, I have a better solution than Blackberry anyway. Presently, I use a Treo 650. On my Treo, I have a superb mail client called Chatter that is mapped to an IMAP server. Anytime I get email on the IMAP account, the client detects the receipt of the item, and my Treo is notified within seconds. At $39 per client license, this solution makes more sense than the overhead of maintaining and implementing a dedicated Blackberry server. And besides, if NTP has anything to say about it, the Treo and Chatter will the best push email solution left standing.
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