Although most of the experts I interviewed this week for my previous post entitled Will there be a BlackBerry shutdown? Eight experts tell me do not believe U.S. District Court Judge James Spencer [at right] will declare an injunction after tomorrow's hearing that would suspend Blackberry services in the U.S. due to patent infringement, one pundit begs to differ.
That would be Troy Wolverton, who covers BlackBerry-maker Research In Motion for the well-known financial news and analysis website TheStreet.com.
I asked Troy to drop me a note with his thoughts. Gotta tell ya, Troy makes a good case.
Hear him out:
I've been following the progress of the trial for more than a year now -- ever since the Appeal Court in December 2004 upheld the original ruling. I've talked with both sides about the case and have talked with a number of legal experts about it.
My sense is the following:
1. The sides will not settle prior to the hearing. $450 million -- the settlement figure reached earlier -- wasn't enough for NTP. Neither side has really talked about why the settlement broke down. But reading through the lines, my understanding of the diference is that RIM wants to pay X amount not only to settle the case against it, but also to immunize all of its partners and clients. In contrast, NTP thinks that RIM is just the stepping stone. After forcing RIM to acknowledge its patents, the company wants to go after the carriers and potentially individual RIM customers for licenses. That condition is likely anethema to RIM's partners and customers, so the company is unlikely to back down. And NTP, thinking it can get a lot more money beyond RIM, likely won't back down either unless the price is right (and likely a good deal steeper than $450 million).
2. Assuming there's no settlement, the court is likely to issue an injunction. Indeed, I think this is part of the reason NTP hasn't chosen to settle just yet. I think they think they have a strong hand.
Not only is an injunction standard fare in a case such as this, but the judge hearing the case has repeatedly shown his impatience with RIM's efforts to delay the inevitable in recent months. He's brushed aside all of the company's arguments, particularly those premised on what's going on in the patent office (where RIM is trying to get NTP's patents invalidated). There was a lot of hope raised by the recent amicus brief filed by the Justice Department, which argued that the judge should delay any injunction out of safety and security concerns related to government BlackBerry users. But the government's argument seems perverse. The governement 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.
3. 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.
There, you have Troy's side, as well as the viewpoints of other experts. What do you think? Post a TalkBack and let us know.