Monday, February 13, 2006

ABOUT THAT BLACKBERRY WORKAROUND . . . Towards the end of last week, RIM announced their "workaround" to get past NTP's patents, just in case the district court decides to grant an injunction against the wireless e-mail giant.

The software fix is called the "BlackBerry Multi-Mode Edition" and works by changing the part of the network where e-mails are stored. Under the fix, the software is capable of operating in different modes that can be remotely activated by RIM through its Network Operations Center (NOC). If the injunction is ordered, RIM will activate a "U.S. mode" remotely via the NOC. The workaround designs would then automatically be applied for each handset and corporate e-mail server containing the Multi-Mode Edition software update. If the injunction falls through, the software will operate in "standard mode," which is identical to how the current BlackBerry software works today.

Currently, when a device is out of wireless coverage range and can't immediately get e-mail access, RIM's service stores incoming messages on computers at one of its two NOCs. When the device comes back into coverage range, the e-mails are then forwarded automatically. Under the workaround, these waiting e-mails would be stored somewhere else, such as a firewall server of a company or carrier network (see more here and here).

Further details of the workaround are sketchy, and most techies can only speculate as to how the message routing really works. A large part of the infringement of the NTP patents is based on the e-mails being stored at the NOC, and there seems to be a consensus agreeing that the workaround will overcome NTP's patents in principle.

However, it is nevertheless a close call, and it is evident that the workaround was instituted from a position of weakness from RIM's side (even though RIM has claimed to have filed a patent on this technology). From what is currently known about the fix, when the patch is installed, the header and message aren't pushed to the device, but a notification message is sent that looks like the header of the email. The message doesn't get pulled to the device until the notification message is activated by the user to read the email message, which can create a 1-2 second delay.

RIM's move seems to be geared more towards buying time, hoping that the USPTO's reexamination (and the inevitable appeals) will result in a bunch of invalid patents, while the software fix runs its course. Even with the workaround, there is nothing that would stop NTP from filing new lawsuits against RIM regarding the workaround. But to do this, NTP would have to spend additional time pursuing this litigation. There's also the question whether this fix may violate third-part patents (e.g., Visto).

More importantly, this fix would appear to put RIM in a precarious position when arguing against the potential injunction. Since RIM is touting this fix as "transparent" to the users, it seems like a difficult task to argue that an injunction would be catastrophic for RIM users while at the same time promoting a workaround that is claimed to work as well as the infringing process . . .

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