DOJ skeptical of exemptions to a BlackBerry injunction

As a potential shutdown of the popular handheld BlackBerry devices and network looms, the Justice Department is still not convinced that government users can be easily exempted from a possible injunction.

At issue is the long-running patent dispute between BlackBerry developer Research in Motion Ltd. of Waterloo, Ontario, and patent license holder NTP of Arlington, Va. NTP claims'and the federal courts have largely agreed'that RIM willfully infringed upon NTP's patents when it started marketing the BlackBerry devices.

In a Feb. 1 brief, Justice told the federal court overseeing a hearing on the BlackBerry patent infringement lawsuit that thus far, no one has offered a feasible solution that could keep federal, state and local governments online while the rest of the BlackBerry population is cut off.

As such, the government urged the 4th U.S. Circuit Court of Appeals in Richmond, Va., to delay any potential injunction until a specific plan for exempting government users is in place and agreed upon by all the parties.

'While we are mindful of the court's desire to conclude this litigation, nevertheless, in our view the record does not reflect a sound basis from concluding that the exceptions [from a potential shutdown] will be feasible to implement,' Justice said.

The 4th Circuit Court will hold a hearing later this month on whether it should impose an injunction against BlackBerry usage, although federal, state and local government users would be exempted.

But just how such an exemption would take place is up for debate. While RIM told the court this would be nearly impossible, NTP said the government could assemble a whitelist of government BlackBerry users that would not have their BlackBerry service interrupted.

Justice agrees with the former.

'After considering all of these approaches, while we cannot say that a whitelist concept is not ultimately feasible, neither can we conclude that it is feasible,' Justice said.

Before acting on an injunction, the court should require NTP to file a specific implementation plan for how government users will remain online, which should be vetted in court, Justice added.

In fact, Justice said the only potentially feasible injunction 'is one that is prospective in nature and enjoins any new sales of BlackBerry handhelds or server software to private users who do not fall within the exceptions.'

Meanwhile, RIM received some good news when the U.S. Patent and Trademark Office, which is now re-examining the patent infringement case, threw out another handful of NTP's claims.

In an Action Closing Prosecution, the PTO on Feb. 1 rejected five of seven claims that RIM infringed upon one of NTP's patents.

This is not a final action, however, as NTP can appeal the decision to the PTO Patent Appeal Board and then take the matter to court.

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