Tammy Fenstermaker’s life wouldn’t be the same without her BlackBerry.
The wireless mobile device allows the computer consultant to check e-mail, browse the Web, make phone calls and keep appointments for work – all while she’s on the go or taking care of her 9-year-old son.
“I’m not addicted to it. I’m addicted to freedom,” said the Lone Tree resident. “It buys me my freedom to be a mom at the same time while I’m working.”
But the Canadian company that makes BlackBerry, Research In Motion, is operating under the threat of shutdown because of a stubborn patent-infringement lawsuit that has dogged it for four years.
NTP Inc., a McLean, Va.-based patent-holding company, is seeking a court injunction that would force RIM to stop using its current technology. The issue will be argued and possibly decided during a Feb. 24 hearing in federal court in Richmond, Va. RIM may have to switch to new technology and possibly pay royalties to NTP.
“NTP has BlackBerry by the throat,” said University of Colorado law professor Philip Weiser, an antitrust and intellectual- property specialist.
The chance of a shutdown is considered slim, in part because NTP would benefit more over the long term by exacting royalties. Federal regulators also have indicated they plan to invalidate patents held by NTP.
Nonetheless, Fenstermaker is among 4.3 million BlackBerry users worldwide, approximately 3 million of them in the U.S., who could be left with BlackBerrys gone dark should a ruling go against RIM.
“My stress level would go up if I’m not connected,” she said. “I’m reading a couple hundred e-mails a day.”
On Thursday, RIM announced details of a long-awaited “work around” should an injunction be placed on the company’s servers. The workaround would allow users to continue accessing their e-mail by downloading and installing new software.
The software is not yet available for downloading, and RIM did not indicate when it would be. But the news sent RIM’s stock up 97 cents Thursday to $69.62. RIM officials have said the workaround is a last resort that they hope to avoid because it might inconvenience customers.
The workaround offers a bit more security to the 30 employees, including sales and engineering personnel, at Denver- based Peak Resources who use BlackBerrys. The 47-employee company resells IBM hardware and services.
“We’ve been on BlackBerrys for two years. It has really become a part of our structure,” said John Simonton, vice president of operations for Peak Resources.
Peak bought a BlackBerry Enterprise Server for $5,000 and spent $100 to $200 for each BlackBerry. The workers share a monthly batch of 25,000 minutes, unlimited data usage and unlimited night and weekend minutes for $2,000.
“We’re far more responsive, so everybody’s expectations go up,” Peak information-technology vice president Paul Watson said. “Our clients are aware we carry these devices. They know we’ll be in touch.”
The key issue in the BlackBerry case is a patent on the computer technology that “pushes” e-mail from a user’s various accounts to his BlackBerry device. The company’s ability to aggregate e-mail from more than a dozen accounts, without users having to log into each mail service individually, is what makes the device so popular.
Depending on the configuration, some mobile users also can access their company’s private Intranet Web pages using a BlackBerry. Mix that with organizational tools such as Microsoft Outlook or IBM’s Lotus Notes, Web-browsing capabilities and cellphone service, and BlackBerry users have a full desktop or laptop replacement in their pocket or on their hip.
RIM officials say the company will make a strong argument in court against an injunction or in favor of delaying a decision. The lawyer making those arguments Feb. 24 likely will be Herbert Fenster, a Denver attorney with the Washington firm McKenna Long & Aldridge.
RIM will argue that an injunction would harm the public interest, Fenster said. The company estimates that BlackBerrys are used by 1 million people either in the government or working for government contractors. There’s no way to separate them out from all BlackBerry users to avoid potential losses of service, he said.
“We have the best public-interest reasons for not issuing an injunction that you can imagine,” Fenster said.
The Department of Justice has asked to intervene in the case, saying it’s concerned about the effect an injunction might have on its attorneys and other BlackBerry users.
RIM, which chose not to settle the case early on, reached a tentative $450 million agreement last year with NTP that later fell apart. The settlement price could be far higher now, CU’s Weiser said, particularly after the U.S. Supreme Court last month refused to hear the case.
Even if the judge grants the injunction, the fight won’t be over, Fenster said.
RIM could appeal a potential injunction and ask the court to delay the action until a ruling is made on the appeal. Its case for appeal may hinge on another case being considered this year by the Supreme Court. That case, brought by eBay, questions whether courts are required to issue injunctions against companies that are found to have violated patents.
For many observers, the case points to key problems facing the U.S. patent system. NTP doesn’t make any products but has secured a valuable patent it’s using for what some see as corporate extortion.
“It’s not consistent with our patent policy, which is trying to encourage innovation and creation of useful new devices,” said University of Denver assistant law professor Viva Moffat. “Having a more rigorous patent- examination procedure might in the long run make a difference.”
Staff writer Kimberly S. Johnson can be reached at 303-820-1088 or kjohnson@denverpost.com.
Staff writer Greg Griffin can be reached at 303-820-1241 or ggriffin@denverpost.com.
