February 3rd, 2006
Week's developments prove BlackBerry shutdown a race against time
The way I see it, this past week’s developments related to the potential shutdown of BlackBerry sales and services in the U.S. have everything to do with process.
Earlier this week, the U.S. Patent & Trademark Office issued a tentative final rejection of the last of five NTP patents that form the crux of the patent-holding company’s infringement quarrel with BlackBerry-maker Research In Motion.
NTP has 30 days to appeal the judgement, a time span that, if used to the max, would take until early March.
At that point, the USPTO presumably issue their final, final, this is it ruling- probably within weeks after that. Expect that decision by late March or early April.
Then comes the final decision on all the other four patents. The collective briefs-appeal-ruling cycle on these could easily take most of spring, and perhaps beyond.
Meanwhile, three weeks from today, (Friday, February 24) U.S. District Court Judge James Spencer is holding a hearing that could result in a service suspension.
The U.S. Department of Justice has taken RIM’s behalf, arguing that such a suspension would be disruptive to the American economy and civic infrastructure. And to their credit, NTP is saying that they would be willing to acknowledge this fact by agreeing to a 30-day grace period before such a suspension would take effect.
So we have a curious dynamic at work. A suspension could come down as soon as March 26, but the final USPTO decision-cycle on these patents could last up until late spring or early summer.
I still think the most likely short-term development is a modest escrow payment by RIM to NTP. Such a payment could be ordered by Judge Spencer, as a result of a binding arbitration process he recommends on or before February 24, or in the least likely scenario, as a result of negotiations between the two combatants.
The escrow would come with with two stipulations: payment would forestall a service shutdown, but it would need to be returned speedily and without prejudice if all the disputed patents are invalidated.
Russell Shaw is an enterprise computing journalist, analyst and author based in Portland, Oregon. See his full profile and disclosure of his industry affiliations.
