Yesterday, NTP issued a press release expressing mystification about why RIM balked at terms proposed in December and accusing RIM of misstating the facts. Typical to this case, things are not so black and white. Within hours, RIM elaborated on the reasons it opposes the deal. In an extraordinary move, the company released a confidential document filed with the court as part of its argument for why it hadn’t reached a settlement. The document is the opinion of Roger M. Milgrim, a New York lawyer and patent expert paid by RIM to look at a settlement agreement offered by NTP on Dec. 1.
“Don’t be fooled by NTP’s aggressive stance,” wrote Mark Guibert, a vice-president at RIM, in an e-mail that included Milgrim’s court affidavit. “They are simply trying to convince the court and the public that they’re being reasonable because they don’t want to look like extortionists.”
So why is RIM so against the proposed settlement? Milgrim writes that it leaves room for NTP to come back in the future and sue RIM and its partners. According to Milgrim, the agreement is written in such a way that only service sold by RIM would be covered — not service sold by RIM’s wireless partners. That could leave them susceptible to lawsuits by NTP, he argues.
Device manufacturers that license RIM’s BlackBerry Connect and BlackBerry Direct software also aren’t covered by the agreement, Milgrim says. Companies including Motorola (MOT) and Nokia (NOK) have licensed this software so they can provide BlackBerry’s flavor of mobile e-mail on their handhelds. Milgrim says that while the agreement covers RIM products, RIM can’t extend its license to device partners.
While RIM has the right to sell products that include the NTP patents, partners that include RIM products in their devices cannot, Milgrim says. Milgrim also said it wasn’t entirely clear how broadly RIM’s devices would be covered by the NTP claims patents. That’s because there is still some debate about how broadly the NTP claims extend over the wireless e-mail systems.