- The Washington Times - Wednesday, February 22, 2006

Ubiquitous. Reliable. Essential.

That’s how Washington-area BlackBerry users describe their e-mail devices as they await a federal judge’s ruling tomorrow in a patent battle between Canadian manufacturer Research in Motion Ltd. (RIM) and McLean patent holder NTP Inc.

“I can use it all over the world,” said Eugene Faison, chairman and chief executive of Equals Three Communications Inc., a Bethesda marketing firm.

Mr. Faison said he has not explored any BlackBerry alternative because he is so committed to the device he has used to make phone calls and access e-mail during six trips to Africa in the past 18 months: “It’s connected me to the world and it’s really become a reliable business tool.”

“There’s almost an expectation on the client’s part that you get back to them in fairly short order,” said Joanne Connelly, president of ConnellyWorks Inc., a 10-person Fairfax public relations and marketing company that works with technology providers to the federal government. “They expect within the hour they’ll hear back from you,” and her BlackBerry enables her to meet those expectations.

In November, U.S. District Judge James R. Spencer in Richmond ruled against the fourth motion to delay the case by the Waterloo, Ontario, manufacturer, which wanted the judge to wait until the U.S. Patent and Trademark Office finished its re-examination of five NTP patents that it had previously rejected.

The government agency officially denied one NTP patent yesterday and has indicated it will again reject the other four.

The companies agreed on a $450 million settlement last March, but the deal fell apart in June. Judge Spencer, who was nominated to the U.S. District Court for the Eastern District of Virginia by President Reagan in 1986, could order RIM to shut down BlackBerry service for more than 3 million users in the United States.

“I’m worried because you begin to rely on these tools,” said Ms. Connelly, who reads or writes about 150 e-mails daily and has delayed buying a BlackBerry for a new employee until the court case is resolved. “My business isn’t slowing down.”

U.S. Justice Department lawyers petitioned to be heard in court tomorrow and for future hearings regarding the government’s BlackBerry use. On Tuesday, Judge Spencer said the government could make a statement but that future hearings were not necessary.

“This signals that whatever he’s going to do, he’s going to do it fairly promptly,” said NTP attorney James Wallace Jr., adding that the company has assured government workers and emergency responders that their service would not be shut down.

Legal analysts doubt Judge Spencer will issue an injunction to halt service in the United States.

“It’s not likely that the court would shut down service, because [NTP] can be adequately compensated by money here,” said Joshua Sarnoff, a patent law expert at American University’s Washington College of Law.

“If he believes that a check will do it, he’s not going to grant the injunction,” said Harvey S. Jacobs, managing director of Jacobs & Associates, a Washington law firm that specializes in technology issues.

After saying for months that it had a technical bypass ready in case an injunction is issued, RIM announced Feb. 9 that it had tested software to “work around” NTP’s patent claims for all BlackBerry handsets operating on U.S. networks and would make the software update available online.

Mr. Wallace, a partner at Wiley Rein & Fielding in Washington, said he has not seen the RIM workaround but questioned why the company would not make it available to users now if it is ready.

RIM officials did not return calls for comment yesterday.

Technology analysts said it was impossible to determine the workaround’s viability until they have seen it, but doubted that RIM would tout the solution unless it works.

“They wouldn’t announce this unless it was ready for prime time,” said Carmi Levy, an analyst with the Info-Tech Research Group in London, Ontario.

RIM wants the case to end and does not want any more bad publicity, said Mr. Levy, who is not a BlackBerry user and whose firm does not work with the company. Many of his clients and co-workers who use the e-mail devices are not worried, buoyed by the fact that RIM’s stock price has held up throughout the legal battle.

“If the market [and end users] were truly worried, it would’ve tanked a long time ago,” Mr. Levy said.

RIM’s stock slipped $1.01, or 1.36 percent, to close at $73.14 yesterday on the Nasdaq Stock Market.

Mr. Faison, who averages about 250 e-mails per day, is banking on a settlement.

“There’s too much invested that they wouldn’t find a way to do that,” he said. “I hope that happens.”


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