I have one, and if it gets shut down, I'm gonna need
By Peter Kaplan
WASHINGTON (Reuters) - The maker of the BlackBerry portable e-mail device faces a courtroom showdown on Friday in a patent infringement case that could lead to a shutdown of the service for millions of U.S. users.
Barring a last-minute settlement, lawyers for BlackBerry maker Research In Motion Ltd. (CA:RIM) (RIMM) are due to appear before a federal judge at 9 a.m. (1400 GMT) to try to head off an injunction that would cut service to most of the more than three million U.S. BlackBerry customers.
The Canadian company's lawyers will try to convince U.S. District Judge James Spencer in Richmond, Virginia, that an injunction cutting service would be premature and contrary to the public interest.
"I'd say it's really a close case," said Steve Maebius, a patent lawyer with the firm Foley & Lardner LLP. "It's hard to say what (the judge) will do."
NTP Inc. filed suit against RIM in 2001 in U.S. District Court for the Eastern District of Virginia. A jury found in favor of privately-held NTP in 2002.
In 2003, Spencer granted an injunction that would have halted U.S. sales of the BlackBerry and shut down its service, but stayed the injunction pending appeal.
An appeals court in August of 2005 scaled back the ruling against RIM, but upheld some patent infringement claims. Subsequent appeals have been turned down.
In recent pleadings filed with Spencer, RIM has argued that the judge should continue to refrain from any shutdown because of the "exceptional public interest" in maintaining uninterrupted BlackBerry service, especially to workers in national security, health and safety.
Among the alternatives to the BlackBerry is the Treo 650 smartphone made by computer and smartphone maker Palm Inc. (PALM). Both devices offer phone and e-mail service, access to personal calendars and the Internet.
The company has said that it could deal with an injunction by implementing a "workaround" that substitutes new technology and avoids NTP's patents. It said on Thursday the workaround already is being used by dozens of customers .
"We have strong legal grounds and solid contingency plans, so I feel fine," said Mark Guibert, RIM's vice president of corporate marketing.
RIM Co-CEO Jim Balsillie said at a conference on Thursday that settlement terms offered by NTP were unacceptable. Patent lawyers hired by the company "said we'd be crazy to take these terms," Balsillie said.
The company also is likely to argue that the U.S. Patent and Trademark Office should be given more time to complete a re-examination of the NTP patents. That case gained some strength on Wednesday when the patent office issued a decision rejecting one of the five patents at issue in the case.
Maebius said the rejection of one of NTP's patents may indeed "cause the judge to give some pause to marching forward with an injunction."
But previous statements by Spencer have not been encouraging for RIM, Maebius said, because they indicate the judge wants to act swiftly.
At a hearing in November, Spencer said the patent office actions were not his concern and that he had "spent enough of my life and time on NTP and RIM."
That would be just fine with NTP.
"Slow justice is justice denied. If we were going to lose, let me lose fast. If we're going to win, let me win fast. Seriously, there's no reason for this thing to be going on that much longer," NTP co-founder Don Stout said on Thursday.
Spencer also will hear arguments from Justice Department lawyers, who want reassurance that government BlackBerry users will be carved out of any shutdown.
However, Spencer downplayed those concerns on Tuesday when he denied a request by the government to hold a separate hearing on the matter.
Shares of RIM fell steadily Thursday as the court hearing approached, closing off 4.94 percent to $69.53 on Nasdaq.
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