Block BlackBerry sales, not service, lawyers say

A court-ordered shutdown of Research In Motion Ltd.’s BlackBerry service in the U.S. could hamper response to emergencies, and keeping government users connected while cutting off others might not be feasible, according to a brief filed Wednesday by the federal government in the ongoing patent case involving NTP Inc.

No injunction should be issued until the problem has been solved, and it may be that the only feasible solution would be an injunction that only blocked new sales of devices and services, government lawyers wrote.

NTP is seeking an injunction against RIM in a lawsuit that alleges the Waterloo, Ontario, mobile e-mail device maker violates U.S. patents held by NTP in the way it provides its mobile push e-mail service. As proposed by NTP, that injunction would force RIM to stop selling BlackBerry devices and providing the service in the U.S., except that it would not affect users from federal, state or local government, the regional Federal Reserve Banks, or certain “first responder” organizations, such as police, firefighters, and the Red Cross.

In a brief filed Wednesday in the U.S. District Court for the Eastern District of Virginia, in Richmond, attorneys representing the government voiced concerns over the feasibility of that plan.

“We believe that there are still a number of serious questions to be answered as to how an injunction can be implemented so as to continue BlackBerry service for governmental and other excepted groups,” they wrote in the filing. If exempted users couldn’t be separated out, the injunction effectively would shut down their use of the service as well, the attorneys said.

The U.S. Department of Health and Human Services depends on BlackBerry devices to communicate in emergencies, according to a statement by William Henriques, the team lead for preparedness and response technologies at the department’s Office of Public Health Emergency Preparedness.

The devices are especially critical when other networks and e-mail servers are down after a disaster, because the BlackBerry has the unique ability to send messages between two PINs (personal identification numbers), going directly from handheld to handheld over the Internet, Henriques said.

Complicating the issue is that in an emergency, the department needs to communicate with a broad range of partners, including both public and private hospitals, Henriques wrote.

In another statement filed with the government brief, an executive of mobile operator Sprint Nextel Corp. said it would be extremely difficult to identify exempted government users due to its thousands of separate contracts with government agencies.

In addition, many government employees and contractors and first responders pay for BlackBerry service under private contracts but can use their devices for government purposes, wrote Greg Santoro, vice president of product innovation at Sprint Nextel.

Last week the judge in the Richmond federal court scheduled a Feb. 24 hearing to consider whether to impose the injunction.

Also Wednesday, the U.S. Patent and Trademark Office issued a non-final ruling that rejects NTP’s claims to one of the patents in the case, according to a RIM press release. All of NTP’s remaining patent claims have been rejected by the agency in non-final rulings, according to RIM. The company said it expects the office to continue working toward final decisions on the patent claims.

Representatives of NTP could not immediately be reached for comment Wednesday.

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