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=DJ Research In Motion Filing Fires Back At NTP Filing >RIMM
By Stuart Weinberg Of DOW JONES NEWSWIRES
TORONTO (Dow Jones)--NTP Inc.'s "strident response" to the U.S. government "validates" the government's request for a limited period of discovery and an expedited evidentiary hearing on the feasability of a BlackBerry ban in the U.S., Research In Motion Ltd. (RIMM) said in a court filing Tuesday.
The court should also allow the government to intervene in Research In Motion, or RIM's, patent dispute with NTP and should require NTP to submit a specific plan regarding how its proposed injunction could be implemented without disrupting BlackBerry service to government users who would be exempt from a ban.
RIM, maker of the BlackBerry email device, faces a possible injunction on sales and service of the device in the U.S. due to a previous infringement verdict against it in its long-running dispute with NTP. Judge James Spencer, the Virginia District Court judge presiding over the case, is scheduled to hear arguments on an injunction Feb. 24. A decision is expected soon after.
RIM, which is based in Waterloo, Ont., has about 3 million BlackBerry subscribers in the U.S., with as many as one-third covered by the government's exemption. The U.S. Department of Justice indicated in a Feb. 1 court filing that NTP should be required to file a specific implementation plan that details how BlackBerry service for authorized users will continue in the event of a ban.
The DOJ has also requested a "period of discovery" to assure that authorized users won't be impeded by a ban, as well as an evidentiary hearing to consider how the exemption can be implemented without causing a substantial burden to federal, state and local governments.
In a court filing Monday responding to the DOJ, NTP said it's up to RIM, the infringing party, to determine how it would comply with a ban. The filing also said RIM has the means to comply and that RIM misled the government about the information available to it to identify exempt and non-exempt BlackBerry users. NTP, a Virginia patent concern, also suggested that the government has the means to compile a list of exempt users on its own.
The DOJ is expected to file a response to NTP Thursday.
In its filing Tuesday, RIM noted it has already submitted declarations detailing why it can't independently create a list of exempt users. It also noted that the DOJ's Feb. 1 filing discussed in detail the government's own preliminary investigation regarding several approaches for separating authorized and unauthorized users. The DOJ indicated that "serious questions" and great potential burdens to the government remain after consideration of every approach, RIM noted.
"In its filing yesterday, however, NTP directly takes issue with the evidence presented by RIM and/or the United States regarding the feasibilty of creating and maintaining a white list," the RIM filing said.
RIM went on to note that NTP's filing "conveniently fails" to address the problems of compiling white lists of state and local government personnel, government contractors, emergency-services workers, and other BlackBerry users who would be exempt from a ban. "By disputing in detail the information provided to the court by RIM and the government, NTP has created numerous material factual issues regarding the feasibility of devising and administering a white list of BlackBerry users who would be excluded from any injunction," the filing said.
In an email, NTP lawyer Kevin Anderson said RIM doesn't dispute that it bears the burden of determining how to comply with an injunction. "It is simply an Alice-in-Wonderland fantasy for RIM and its partners to assert that they do not, and cannot, know who pays them $40 each month for BlackBerry service," Anderson said. "The money does not just magically appear."
Anderson said that RIM hasn't taken any steps in the last three years to protect its government customers and the blame for the current predicament falls squarely on the willful infringer, RIM.
If the court orders an injunction, RIM will undoubtedly be able to comply rather than risk contempt, Anderson said. "Right now, RIM is just dragging its heels to manufacture a self-created alleged problem," he said.
Company Web Site: http://www.rim.com -Stuart Weinberg, Dow Jones Newswires; 416-306-2026; [e-mail]
(END) Dow Jones Newswires
02-15-06 1047ET
Copyright (c) 2006 Dow Jones & Company, Inc.