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As Decision in BlackBerry Patent Infringement Case Looms, RIM Announces Workaround Solution
[February 09, 2006]

As Decision in BlackBerry Patent Infringement Case Looms, RIM Announces Workaround Solution


TMCnet Associate Editor

As a decision in the patent infringement case between Research in Motion (RIM) and NTP Inc. looms, RIM today revealed details about its “workaround solution” to keep all BlackBerry handsets operating on converged voice/data networks in the United States in the event the court imposes an injunction to shut down the service.



“Although there is no injunction order in place, and RIM believes it has strong legal and factual arguments opposing an injunction, RIM has developed these software workaround designs as a contingency to allow BlackBerry service to continue should the court implement an injunction in the current litigation involving the NTP patents,” RIM said in a press release.

RIM claims it has put a substantial amount of R&D into developing its workaround solution – which is basically an updated version of the software, with some minor modifications. If the judge handling the patent infringement case in federal court decides to issue an injunction, thus shutting down the BlackBerry service, BlackBerry users will be able to download the new software from RIM’s website at
www.blackberry.com/workaround, and continue to use the devices.


RIM claims the back-up software, called BlackBerry Multi-Mode Edition, “is capable of operating in different modes that can be remotely activated by RIM through its Network Operations Center (NOC).”

“In the event of an injunction, RIM is able to remotely activate ‘US Mode’ via its NOC and the workaround designs would automatically engage for each handset containing the Multi-Mode Edition software update,” it said in the release.

Perhaps most importantly, RIM claims the new update will work just as well as the current software, saying in the press release that it has been thoroughly tested and that “the industry leading functionality, performance and user experience remains intact.”

RIM has posted a document on its website explaining the how the workaround works, but it offers only scant details. Essentially, the new software includes “underlying changes” in email message delivery and email message queuing.

In terms of email message delivery, RIM only states that the changes are not visible to users or BlackBerry Enterprise Server administrators, and that the changes won’t go into effect unless an injunction is imposed.

In terms of the changes in email message queuing, RIM explains that under the current software system, “when the NOC determines that a BlackBerry device is outside a wireless coverage area, it queues the message and resends the message when the BlackBerry Device becomes available, without interaction with the BlackBerry Enterprise Server (or BlackBerry Internet service).”

But with the updated version of the software, “the NOC no longer queues messages.” Instead, if a BlackBerry device is outside of the service area, “the NOC will inform the BlackBerry Enterprise Server (or BlackBerry Internet service) that the messages cannot be delivered at that time. The BlackBerry Enterprise Server (or BlackBerry Internet service) will queue the messages until it is notified by the NOC that the BlackBerry device is available.”

The document also states that when the NOC informs the BlackBerry Enterprise Server that an email message cannot be delivered to a user, “an administrator might see additional log entries generated in the BlackBerry Enterprise Server.”

RIM reports that it has filed new patent applications with the U.S. Patent Office to cover its workaround designs. It also reports that its workaround has been approved by independent legal counsel and does not infringe on NTP’s patents.

The company says if no injunction is ordered, then the existing software and underlying message delivery system on each BlackBerry can continue to run in “standard mode” (identical to the manner in which the current BlackBerry software and system operate) “and the workaround will remain dormant.”

In addition, all BlackBerries which are yet to be shipped will come pre-loaded with the updated version of the software (as will the RIM BlackBerry Enterprise Server).

Meanwhile, RIM has commenced the network certification process required for all software updates. As part of the court proceedings, RIM is requesting a “transition period” to give BlackBerry users (and corporate IT departments) time to update the software on both servers and handsets. NTP has proposed that this transition period be 30 days but RIM is arguing that users should be given more time to update the software on their handsets.

RIM also points out that a court injunction might not necessarily apply to pre-existing BlackBerry customers.

“Any potential injunction would not necessarily apply to customers that purchased a BlackBerry handset prior to the effective date of any such injunction,” RIM states. “RIM believes there are persuasive legal grounds for (at least) exempting pre-existing customers from any injunction and RIM has raised these arguments in its court submissions. In the event of an injunction without such an exemption however, the BlackBerry Multi-Mode Edition software update would allow continuing service for pre-existing customers.”

“RIM remains pragmatic and reasonable in its willingness to enter into a settlement that would generously compensate NTP while protecting RIM’s business and partners,” said Jim Balsillie, chairman and co-CEO at Research In Motion, in the release. “NTP’s public offer of a so-called ‘reasonable’ license, however, is simply untenable. It comprises illusory protection for RIM and its partners and requires a lump-sum payment for the theoretical life of the patents even though the US Patent Office is expected to nullify them.”

A hearing on the patent infringement case is scheduled for Feb. 24 in federal court in Richmond, Va. U.S. District Judge James Spencer is presiding over the case. It’s possible that Spencer will decide whether to impose an injunction during the upcoming hearing.

The court’s decision could potentially affect more than 3 million BlackBerry subscribers – many of whom claim to be extremely reliant on the portable devices to communicate with others and run their businesses. That has become part of RIM’s argument in opposing the injunction: It claims that shutting down the service could have a negative effect on business and government operations - and has also theorized that a BlackBerry blackout could have profound economic implications for the United States.

The BlackBerry is used heavily by workers and elected officials at the nation’s capitol, and RIM’s lawyers have argued that there is “exceptional public interest” in maintaining uninterrupted service for government and national security officials. Even the U.S. Justice Department has argued against a shut-down, saying that NTP had not submitted enough evidence to show that government users could be exempted “without substantial hardship.”

NTP sued RIM for patent infringement in 2002 and won an injunction in 2003 to shut down the service, but only in the U.S. That injunction was stayed pending appeals, and since then the court has issued a series of rulings which have made RIM’s share values about as stable as a waterbed. According to Reuters, the stock climbed 3.4 percent before the bell on Thursday, adding $2.35 to $71.

“RIM’s workaround provides a contingency for our customers and partners and a counterbalance to NTP’s threats,” Balsillie said. “This will hopefully lead to more reasonable negotiations, since NTP risks losing all future royalties if the workaround is implemented.”
 
Rich Tehrani, president and group publisher for TMC, said RIM’s announcement regarding the workaround is “great news for everyone that depends on BlackBerries to be productive as well as those people concerned about the state of the U.S. economy in the wake of all BlackBerries simultaneously being disconnected.”
 
“In a stressful game of patent cat and mouse, it seemed that BlackBerry parent company RIM has been a breath away from death for the last few months,” Tehrani said in a posting on his blog today. “Now, finally, the announced workaround plan has been rolled out, and there are many details, and even new patent applications RIM has filed to ensure that they aren’t harassed about this issue again.”

Patrick Barnard is Associate Editor for TMCnet and a columnist covering the telecom industry. To see more of his articles, please visit Patrick Barnard’s columnist page.

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