The U.S. Department of Justice reiterated its opposition to a possible BlackBerry ban, saying in a court filing Wednesday that NTP should file a specific implementation plan that details exactly how BlackBerry service for authorized users will continue should a ban be implemented.
The plan should include a description of the steps that each interested entity – such as wireless carriers, federal, state and local governments, government contractors and certified first responders – must take, as well as information that must be provided, the filing said. It also must address any issues that might be apparent in securing that information, and the government and RIM should then be permitted to comment on the specifics of the plan, the filing said.
The government, which is exempt from a BlackBery ban should one be ordered, also requested that it be heard at any hearing on injunctive relief. A hearing on an injunction is scheduled in Virginia District Court for Feb. 24.
“Until a procedure is concluded to explore the issues realised herein, and permit the determination that these exceptions can be implemented without substantial hardships to the government, no injunction should issue,” the filing said.
Wednesday’s filing was the second time in three months that the DOJ has weighed in with the Virginia court in the high profile patent dispute between RIM and NTP. In November, it filed a statement of interest saying it was “imperative that some mechanism be incorporated that permits continuity of the federal government’s use of BlackBerry” if a ban is granted.
NTP attempted to allay the government’s concerns, noting in a filing late last year that RIM’s carrier partners could easily compile a whitelist of authorized government users and unauthorized users thereby facilitating a ban. NTP also indicated that it would exempt third-party users, including government contractors, police departments, fire departments and other emergency personnel.
The government hasn’t been placated. “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,” the DOJ said in its filing Wednesday.
The filing said that some “period of discovery” should be permitted to assure that authorized BlackBerry users will not be impeded by an injunction. An evidentiary hearing should then follow and consider how the exceptions to the injunction can be implemented without substantial burden to federal, state, local governments and other entities that are exempted, the filing said.
The filing didn’t set a timeline on when an injunction might be possible and it doesn’t bode well for NTP, whose patents are in the process of being rejected by the U.S. Patent and Trademark Office. On Wednesday, the PTO rejected one key NTP patent in what amounts to a final office action. NTP can appeal the ruling, but RIM is betting that the judge won’t be able to ignore the ruling when deciding on a ban. It is also betting that the judge won’t be able set aside the government’s concerns and go foward with an immediate BlackBerry ban.
The DOJ’s filing was one of three filings to the Virginia court Wednesday. NTP and RIM also submitted filings arguing their respective positions for and against an injunction.
In its filing, NTP argued that a 30-day transition period – should a ban be granted – for governmental entities and emergency services departments “is adequate, because exempt entities have known since last November that they should begin to take action if they wished to continue Blackberry service…”
The NTP filing also argued that the DOJ can have “no legitimate governmental concern” regarding NTP’s proposed injunction order, which included immediate injunctive relief prohibiting “new sales” of the pertinent Blackberry products and services to non-exempt entities.
The DOJ appears to support this claim. In its filing Wednesday, it said that “…the only feasible injunction is one that is prospective in nature, and enjoins any new sales of BlackBerry handhelds or server software to private users…”
In its filing, NTP claims that the DOJ should have no reason to oppose “immediate injunctive relief” requiring RIM to identify the major commercial accounts and cease service to those accounts within the original proposed 30-day period.
NTP said it believes the PTO’s ongoing review should have no bearing on the courts decision on a BlackBerry ban. “Notably, RIM still is unable to cite a single instance in which any form of PTO examiner’s decision in a post-trial reexamination sufficed to impact a litigation that had advanced beyond a jury verdict, beyond entry judgement, beyond (Court of Appeal of the Federal Circuit) affirmance, and beyond Supreme Court denial of certiorari,” the filing said.
NTP also claimed that RIM “insists on covering-up activities” related to the PTO examinations. For instance, it alleges that in 2003, when RIM first tried to interject its post-trial reexamination activities into the proceedings, NTP sought “the most basic information” from RIM, including RIM’s communications to Congress and the PTO regarding the disputed patents.
According to NTP, RIM knew its “lobbying efforts could not survive scrutiny” so it “chose to conceal its activities and filed a motion to quash NTP’s discovery.”
The filing also said that, “This court can and should cite RIM’s concealment of its ex parte lobbying activities as a basis for denying RIM’s request for extraordinary remedy of staying the injunction.”
To further advance its argument, NTP cited a PTO office action dated Nov. 15, 2005. “RIM made the election to wait until after losing at trial; it ‘chose its route and must now deal with the consequences of its decision.’ “
RIM’s filing wasn’t immediately available.