DOJ Asks Court to Keep BlackBerry Up

The U.S. Department of Justice (DOJ) has asked a judge to ensure that government users can continue to send each other e-mail on their “essential” BlackBerry devices, even though the court has ruled against the maker of BlackBerry devices in a patent infringement case.

The U.S. District Court for the Eastern District of Virginia may soon reinstate an injunction requiring Research in Motion Ltd. (RIM) to stop selling BlackBerry devices and software in the U.S., but the DOJ, in a statement of interest filed with the court, argues that government workers would lose an important tool if BlackBerry devices are no longer available.

“The United States has a considerable interest in this action, to assure that its use of BlackBerry devices and software … is not impeded and that the public interest is not substantially harmed by any injunctive relief,” wrote Paul McNulty, U.S. attorney for the Eastern District of Virginia, in the Nov. 8 document. BlackBerry devices are widely used by government and congressional workers in Washington, D.C.

RIM does not maintain a database of government BlackBerry users, and it would be difficult for the company to identify such users, the DOJ document said. RIM identifies users by personal-identifier numbers, not by e-mail addresses ending in government identifiers such as .gov or .mil, the document said.

Instead, it may be necessary to create a huge government “whitelist” of users who should not have their BlackBerry service turned off if the injunction is reinstated, the DOJ said.

The DOJ also noted that the five patents related to wireless communications held by Virginia patent firm NTP Inc. are under review by the U.S. Patent and Trademark Office. An NTP lawyer wasn’t immediately available for comment.

In December 2004, the U.S. Court of Appeals for the Federal Circuit upheld a 2002 jury decision awarding NTP US$23.7 million in damages for patent infringement. The appeals court sent the case back to the Virginia court for further deliberations. After the jury award, the Virginia court slapped an injunction on sales of BlackBerry devices and server software in the U.S., but the appeals court had vacated the injunction.

In March, two companies announced they had agreed to settle the dispute by having RIM make a US$450 million payment to NTP in exchange for a perpetual license to NTP’s patents. However, the deal fell through; RIM thought the press release constituted a final agreement while NTP insisted the companies had never reached a definitive pact. RIM has asked an appeals court to enforce the terms of the settlement, and is expected to argue against an injunction by pointing out that it agreed to settle the case months ago.

By Grant Gross,  IDG News Service