On Friday, U.S. District Court Judge James Spencer will hold a hearing on the ongoing patent infringement dispute between BlackBerry-maker Research In Motion and patent holding company NTP.
Based on Judge Spencer's findings, he may issue an injunction suspending BlackBerry sales and services in the U.S. until RIM and NTP reach a settlement. If that is the case, expect RIM to put their BlackBerry Multi-Mode workaround in place. Or at least try to - NTP may sue to block that, as well.
On the other hand, Judge Spencer may issue an injunction but declare a stay on the injunction until the U.S. Patent and Trademark Office issues final rulings on the five patents in question.
Alternatively, he may dismiss the case.
With nearly five million BlackBerry users- and many readers- hanging on word of this decision, I have contacted several top BlackBerry experts- financial writers, analysts, journalists, bloggers, etc.- and asked them for their opinions of what is going to happen.
I should point out that I have familiarity with this subject and have been following it closely. My BlackBerry blog, BBHub, is part of the family of blogs that includes Engadget.
I know what I think: an injunction will be issued, but stayed for 60 days in anticipation of final USPTO decisions on the patents in question.
I wanted to learn what others who follow BlackBerry closely think, which is why I got this round-table together.
Before I start, I would like to point out that two of the commenters issued lengthy but profound statements that I have summarized here, but have included in its entirety in separate posts.
So panel, let's get started. Will there be a BlackBerry injunction?
I think an injunction is unlikely (at this time anyways) but if it does happen in the long run it could cause companies to re-evaluate their dependence on Blackberries which could help competitors. I also see a big advertising campaign from RIM after all this is over to restore confidence in their company.
I personally just don't think that Research in Motion would actually be shut down. The United States Patent and Trademark Office has officially notified both NTP and Research in Motion that they fully intend to invalidate the 5 NTP patents that RIM was found guilty of infringing upon in their final review and has already done so on every non-final review to date. It just wouldn't make sense to cause the kind of financial chaos that a shutdown of BlackBerry service in the United States would create if a mission critical application with hundreds of millions of dollars in business process wrapped around it were shutdown because an "impatient" judge who is "tired of dealing with" the case cannot wait to see what the final word on the validity of the patents is from the USPTO.
If Judge Spencer has any perception of the potential impact to the blackberry empowered economy resulting from a shutdown, a injunction is without a doubt out of the question. The most likely outcome will be an order to pay a revenue share to NDP, most likely higher then the initially proposed 8%.
Although the judge would certainly be within his right to do so, I don't think an injunction is likely given the state of the USPTO's review of the patents at the heart of the case. There are too many people in high places that rely on the BlackBerry to be productive. Also, I don't think NTP really wants a long, drawn out injunction to occur, either - such a drastic event could lower RIM's value and, in turn, NTP's profit potential.
There are dozens of possible scenarios that could develop over the next month, but Gartner has created 4 general categories of results that we believe events will fall into. We have assigned probabilities to each of these, with the total being 1.0. RIM and NTP will settle (0.35 probability). Resolution of this matter will be delayed for at least 12 months (0.35 probability). RIM will enact work-around plans it claims does not run afoul of NTP (0.2 probability).
The federal court will issue an injunction against RIM that shuts down BlackBerry service (0.1 probability). If the workaround “works” and is deemed by RIM users to be not too difficult to implement & use, then it is likely that RIM will implement the workaround, rather than just use it simply as a bargaining chip in negotiations with NTP. I’m assuming that the workaround is real, it works OK, and that RIM will implement it.
If RIM implements the workaround, then the court must determine whether the workaround still infringes on NTP’s patents. I have no idea how (or when) the court will rule on this.
Only after these two conditions have been satisfied would we recommend that Gartner clients implement the workaround.
It is unfortunate, but many clients may have to operate in legal limbo while all of this gets sorted out.
I'm a long-term RIMM shareholder and plan to hold my shares of RIMM stock. I certainly expect a lot of volatility in both directions, up and down, but will hold tight. There will continue to be a lot of court fighting for a long time to come though, so there will be a long period of uncertainity. However, I feel there is a huge amount of strength in Research In Motion to weather all of this, including a sizeable war chest of cash, to weather multiple appeals, patent office rulings, 90 day shutdown lead time period requested by the US government, reasonable negotiations with NTP, the widely-announced RIM workaround, etc.
There are only two options I can see, and neither will result in any real interruption in the BlackBerry service. If the judge rules in favor of RIM, then the company will continue just as it is now. If he rules against RIM, this company will turn on the backup solution it has developed and service will also continue, but with a bit more hassle for BlackBerry users.
On the other hand, Troy Wolverton, who covers BlackBerry-maker Research In Motion for TheStreet.com, foresees an injunction:
The government argued that the burden falls on NTP to show that an injunction wouldn't affect government BlackBerry users. It seems to me, it's RIM's problem to try to sort out its own users -- and I think the judge is likely to rule the same.
RIM's response to the injunction is likely to be a move to put its workaround in place. And that's where everything becomes interesting. RIM's willingness to finally give in to NTP will depend a lot on how well the workaround works and how patient its users are with any problems that arise with it.