- The Washington Times - Thursday, February 9, 2006

NEW YORK (AP) — Research In Motion Ltd. said yesterday it has made good on its promise to develop a software “workaround” that would keep its BlackBerry wireless e-mail service running if a Virginia court bars the use of its current system in a patent dispute.

NTP Inc., a tiny Arlington company, has convinced a federal jury that RIM’s software infringes on its patents, and is now seeking an injunction that would shut down BlackBerry service for private-sector U.S. users. Legal observers have characterized the chance of a shutdown as slim, partly because NTP would benefit more over the long term by exacting royalties from RIM.

In court filings, Waterloo, Ontario-based RIM has said that forcing its users to install new software that works around NTP’s patents would be disruptive and prompt some of them to switch to other e-mail providers.

RIM played down those concerns yesterday, saying users would notice no change once the new software was installed. When downloaded, the software would operate as normal, but on a signal from RIM, would switch into workaround mode.

The software is not yet available for downloading, nor did RIM indicate when it would be.

RIM provided few technical details, merely noting that e-mail messages that queue up while a BlackBerry subscriber is out of the service area would be stored on a different server by the workaround software.

As a strategy, the workaround is a double-edged sword for RIM. On the one hand, the workaround may reassure customers who are frightened by the prospect, albeit unlikely, of a shutdown, and raise RIM’s bargaining power with NTP for a possible settlement.

“From a tactical perspective, it’s certainly helpful in negotiations if they do have a workaround,” said David Roodman, an intellectual-property lawyer at the firm Bryan Cave in St. Louis.

On the other hand, one of RIM’s themes in arguing against NTP in court has been that its e-mail service is of national interest and that an injunction would disrupt vital government and emergency services. With a workaround that wouldn’t bother users, that argument could fall flat.

NTP has used RIM’s statements about a possible workaround to urge the judge to disregard RIM’s claims that an injunction would cause a major disruption.

Yesterday, NTP lawyer Kevin Anderson said the company had no comment on RIM’s announcement.

RIM Chairman and Chief Executive Officer Jim Balsillie called the workaround “a counterbalance to NTP’s threats.”

“This will hopefully lead to more reasonable negotiations, since NTP risks losing all future royalties if the workaround is implemented,” Mr. Balsillie said.

The federal judge hearing the case in Richmond has said he could decide on NTP’s request for an injunction after a hearing scheduled for Feb. 24.

In a parallel proceeding, the Patent and Trademark Office has been taking steps to invalidate the NTP patents at the core of the case.

But U.S. District Judge James R. Spencer in Richmond has said he will not wait for a final ruling by the patent office before ruling on the injunction.

Judge Spencer may, however, have to look at whether the workaround infringes on NTP’s patents. This could delay an injunction until after the patent office makes a final ruling.

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