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=DJ DOJ Says NTP Must Decide How Ban Would Be Implemented
By Stuart Weinberg Of DOW JONES NEWSWIRES
TORONTO (Dow Jones)--NTP Inc. must decide how a potential BlackBerry ban in the U.S. should be implemented before the government can determine if that approach is feasible, the U.S. Department of Justice said in a court filing Thursday.
The filing is the latest in a flurry of filings by the DOJ, NTP and Research In Motion Ltd. (RIMM) ahead of a key hearing in the RIM-NTP patent patent dispute scheduled for next Friday in Virginia District Court. At that hearing, Judge James Spencer will hear arguments for and against a ban on sales and services of BlackBerry in the U.S.
RIM, maker of the popular BlackBerry email device, faces the possible ban due to a previous infringement verdict against it in the long-running dispute between it and NTP. U.S. government BlackBerry subscribers would be exempt if a ban is ordered. RIM, Waterloo, Ont., has about 3 million BlackBerry subscribers in the U.S., including as many as 1 million that may be covered by the government exemption.
RIM has said it can modify its BlackBerry system to work around NTP's patents, but it remains unclear if the new system will work as well as the current one. It's also unclear how easy it will be to implement the new system and whether it will withstand a court challenge from NTP, which is almost certain to come.
NTP's position is no less precarious, as its patents are in the process of being rejected by the U.S. Patent and Trademark Office, which is reviewing all five disputed NTP patents. The PTO has rejected all five patents in preliminary and secondary reviews and final rulings - which are also expected to reject the patents - are imminent.
Still, despite the dangers to both sides, they appear set on slugging it out in court rather making concessions and settling the case.
The recent court filings center around the feasibility of a ban. The DOJ has expressed concern that a ban could impede the government's BlackBerry service and requested that NTP file a specific implementation plan that details how BlackBerry service would continue for authorized users. It also requested an evidentiary hearing and a period of discovery to ensure that authorized users won't be affected by a ban.
NTP indicated in a court filing Monday that it "strongly opposes" the DOJ's requests, noting that it's up to RIM, the infringing party, to determine how to comply with a ban. NTP also said it believes RIM can comply and that it "misled the government about the information available to RIM to identify exempted" BlackBerry users.
RIM fired back with a filing of its own Tuesday, saying NTP's "strident response" in its Monday filing "validates" the government's request for a period of discovery and an evidentiary hearing.
NTP's Filing "Misses The Point"
The DOJ responded to NTP Thursday, saying in its filing that it can't take steps to prepare for a ban until NTP decides how a ban should be implemented. "NTP argues that, as the innocent party, it should not bear burden of compliance," the filing said. "This misses the point. In our brief, we have noted that there are at least four different ways of accomplishing the task of permitting governmental use to continue while enjoining private use. We simply call upon NTP to pick one so that we can concentrate our efforts on addressing issues raised in pursuing that approach."
The DOJ filing noted that NTP had previously suggested that RIM's carrier partners could identify BlackBerry users by using a BlackBerry subscriber's PIN (personal identification number). However, after spending considerable time obtaining information from carriers, the DOJ concluded that this solution wasn't feasible.
The DOJ also noted that NTP's Monday filing suggested a different way to compile a list of authorized users. This approach involves identifying authorized users according to their RIM servers, each of which has a unique SRP (Server Relay Protocol) identification.
"If this is now an implementation plan that NTP agrees substantially complies with its proposed injunction, the government can focus on it," the DOJ filing said. "However, it is wasteful of governmental resources for it to gather information from its many users to identify BES (BlackBerry Enterprise Servers), if NTP then decides that a server-level identification of authorized users does not comply with its proposed injunction."
NTP declined to comment.
In an email Wednesday responding to RIM's Tuesday filing, NTP lawyer Kevin Anderson suggested that RIM and its carrier partners can differentiate between government and private-sector BlackBerry users. "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," he said in the email.
Company Web Site: http://www.rim.net -Stuart Weinberg, Dow Jones Newswires; 416-306-2026; [e-mail]
(END) Dow Jones Newswires
02-17-06 1353ET
Copyright (c) 2006 Dow Jones & Company, Inc.