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The Honolulu Advertiser
Posted on: Friday, February 10, 2006

Substitute software ready for BlackBerry

By Yuki Noguchi
Washington Post

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The company that makes BlackBerry devices said yesterday it has completed development of software that will allow its wireless e-mail to continue functioning even if a court orders the service shut down in a patent dispute.

The announcement from Research In Motion Ltd., the Canadian company that started selling the BlackBerry in 1999, comes less than two weeks before a federal district court hearing. The court has found that RIM violated patents held by NTP Inc. of McLean, Va., and analysts expect the judge to issue an injunction ordering RIM to cease operations in the U.S. That would cause most of the 4 million BlackBerry users in the U.S. to lose service unless the company can implement the substitute software or the two sides can reach a settlement.

RIM said the new BlackBerry software will be available for later download on its Web site and must be installed on customers' e-mail servers as well as each hand-held device. The software will not change the appearance or function of existing devices, but its underlying system, RIM contends, is different than NTP's and does not violate any patents.

Whether that contention holds up remains to be seen, said patent attorney Susan Dadio of Alexandria, Va. "From a technology perspective, whether it's truly a workaround is still a question," because it hasn't met NTP or other patent reviewers' scrutiny, she said. "They have not hit a home run."

Information-technology officials were reluctant to react to yesterday's announcement because RIM did not release details about the software. Many companies have invested heavily in equipping staff members with BlackBerrys and in synchronizing office e-mail servers with them, so they have a financial incentive to stick with the devices.

RIM said it thinks any injunction should not affect existing users, who may not have to download the software. The company said its fix can be remotely activated on BlackBerrys in use.

Kevin Anderson, an attorney for NTP, said the company had not reviewed RIM's proposed software solution and could not comment on whether it would continue to violate NTP's patents.

A spokeswoman for RIM said the company had not been contacted by customers about implementing a download and declined to estimate when the software would become available.

The companies have been locked in litigation for more than four years, and RIM has disputed the validity of NTP's patents but has lost every battle in court. In 2002, the company was ordered by a jury to pay royalties that now total more than $250 million. Last fall, the U.S. district judge said he would not delay an injunction. And most recently, RIM was denied an appeal of its case to the Supreme Court.

In a news release yesterday, RIM maintained that an injunction is not warranted and noted that recent reviews at the U.S. Patent and Trademark Office found that NTP's original patents may not be valid a finding NTP could appeal. RIM is hoping the judge will take the reviews into consideration at the Feb. 24 hearing.

The companies both say they are open to settlement and licensing agreements. But, RIM Chairman Jim Balsillie said in a statement that "NTP's public offer of a 'reasonable' license ... is simply untenable."

Anderson, NTP's attorney, said, "Their characterization is simply wrong."