Exemptions from a BlackBerry injunction may prove tricky

Depending on whom you believe, exempting government users from a potential injunction against usage of BlackBerry handheld devices will either be nearly impossible or as easy as flipping a switch.

And as the patent infringement lawsuit against BlackBerry developer Research in Motion Ltd. of Waterloo, Ontario, moves forward, observers are having a hard time figuring out who is right.

'I see three possibilities,' said Richard Rainey, a partner in the intellectual property litigation group int the law firm Covington & Burling in Washington. 'One, a shutdown of federal workers creates chaos; two, it'll be relatively easy; or three, it'll fall somewhere in between.'

A BlackBerry shutdown is possible because of a pending patent infringement lawsuit against RIM filed by patent license firm NTP Inc. of Arlington, Va. NTP has argued that RIM infringed on several of its patents when it started marketing the handheld wireless e-mail devices a few years ago.

A federal appeals court has upheld most of NTP's claims, and the 4th U.S. Circuit Court of Appeals in Richmond, Va., is holding hearings into an injunction against BlackBerry usage while the parties determine the amount of damages, if any, RIM would owe NTP.

Both NTP and RIM made their cases for and against an injunction in briefs to the court earlier this week.

The case could make it all the way to the Supreme Court.

Although many observers do not anticipate a shutdown'they expect RIM to settle'neither side will say whether talks are progressing or even ongoing.

If there is an injunction, government users would be exempt, but whether such an action is problematic or straightforward remains an open question.

NTP does not foresee a problem. 'The alleged possibility that governmental or first-responder functions could be disrupted by an injunction is laid to rest by the terms of the proposed injunction, which would expressly permit the continuation of government and first-responder services,' the company told the court.

For exempted customers, 'RIM will be entitled to keep those accounts active on the same basis it is serving them today,' NTP said. 'Those customers can have uninterrupted use of their BlackBerry products and services.'

But RIM said this is simply not the case. '[I]n reality, it would be extraordinarily difficult, if not impossible, for the court to devise, implement and continue to administer any injunction that would not disrupt or diminish the use of BlackBerry devices by the mass of BlackBerry users that NTP concedes should be exempt,' RIM told the court.

RIM, in its brief, estimates that there are more than 1 million BlackBerry users in the public and private sectors who would need exemptions.

RIM, government officials and the court could develop and maintain a 'white list' of these users, but this would be nearly impossible, the company said.

'Needless to say, the formidable logistical difficulties presented by having to identify and verify the continuing status of 'excluded or included' users from among the tens of thousands of governmental agencies, governmental contractors and subcontractors, and other companies and organizations that would be, or should be, exempt are prohibitive,' RIM said.

RIM said it cannot create such a list because it does not have the information needed to build or maintain an accurate database, and the responsibilities of doing so would fall on the several government agencies that own BlackBerry products.

'It is unclear who would, or how anyone would, take on the daunting task of organizing, implementing, administering and overseeing the creation, certification and maintenance of such a necessarily fragmented white list,' RIM said.

Covington & Burling's Rainey said he did not understand the technical applications that would go into enforcing an injunction, but that the truth was probably somewhere in between.

'I give [RIM's argument] some credence; I'm sure there's some difficulties in separating Uncle Sam' from an injunction, Rainey said, 'but they probably bill Uncle Sam, and I'm sure there's a way to track that.'

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