RIM clock keeps on ticking

By now, everyone involved in the legal battle between Research In Motion and NTP – from the lowliest BlackBerry user to RIM co-CEO Jim Balsillie, and even Judge Spencer himself – probably wishes the whole affair would just go away. But while many observers, including many in the mainstream media, had convinced themselves that the case would finally come to a head today, it is far from being over. Not only has Judge Spencer reserved his decision for some future date, but RIM has said that it intends to proceed with its software “workaround,” which the company has said avoids the patent infringement issues that are at the centre of the lawsuit. And NTP, meanwhile, says it is still open to a settlement, but RIM won’t negotiate.

In other words, not much has changed.

What happens now is still a giant question mark, and there are as many opinions on the future outcome as there are patent lawyers (and that’s a lot). There are a few indicators that send a fairly strong signal, however — and the signal they send is that an injunction from Judge Spencer is almost a certainty. Whether it will be a complete injunction, which prevents BlackBerrys from being sold or operated in the U.S., or a partial injunction that merely stops the company from selling new ones, remains to be seen. But most patent-law experts say injunctions in such cases are commonplace, and that Judge Spencer has already indicated he isn’t sympathetic to the government’s arguments against such a decision, especially since NTP said it would allow a workaround for government users.

As for the decisions by the U.S. Patent Office, which has rejected almost all of NTP’s patents as invalid – meaning they should never have been issued – it’s important to remember that Justice Spencer has to base his decision on what the reality is right now, and the reality is that those patents are still in full force until NTP has exhausted its appeals to both the Patent Office Appeal Board and the U.S. Court of Appeal. Some patent lawyers also point out that the pressure that has been exerted on the patent office by the U.S. government will provide ammunition for those appeals. And it’s also important to keep in mind that the U.S. Court of Appeal has already heard many of the arguments about the validity of the patents, and has found in favour of NTP. As Judge Spencer put it:

“The hallmark of sanity is to remain firmly tethered to reality. One unfortunate reality for RIM that they want to forget is that there was a trial, a jury was selected, evidence was received and when all was said and done, they found RIM had infringed the patents and the infringement was willful.”

While the delay will give RIM more time to hammer out a deal – something the judge may be counting on – it’s unclear whether Mr. Balsillie wants to settle or not. While comments he made Thursday seemed to indicate that he was more open to the idea, statements he made after the Friday hearing suggested the opposite. And so the RIM saga continues.

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