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Patent Office Rejects NTP Patent Claims

By Tim Scannell

UPDATED: Another door has apparently slammed shut in NTP's ongoing battle with Research in Motion (RIM) over alleged patent infringements involving the popular Blackberry messaging device.

The U.S. Patent and Trademark Office yesterday issued an Action Closing Prosecution ruling rejecting all claims associated with NTP's patent-infringement lawsuit against RIM.

The ruling includes five of the seven claims that NTP alleged RIM infringed upon in earlier actions, which were subsequently dismissed in August by the U.S. Court of Appeals for the Federal Court, and the two remaining claims associated with NTP's suit.

Earlier this year, the Patent Office issued a "non-final office action" on two of NTP's patent claims against RIM.

On the same day, the U.S. Justice Department recommended that NTP's request for an injunction be denied since there are still some serious questions regarding how a disruption might impact essential government users and agencies, or how these users might be made exempt from any service interruptions.

Neither RIM nor NTP could be reached for comment.

In the patent decision, the Patent Office maintains that NTP has no grounds to maintain that its patents were infringed.

The ruling also brings to a close the Patent Office's examination of the proceedings, and restricts NTP from submitting any new information to the patent Office.

NTP does have the right to provide commentary and can appeal the decision following a 30-day period after the Patent Office issues a Right of Appeal Notice, according to a RIM statement.

"In all of the Patent Office rulings to date relating to the reexamination of all eight of the NTP patents, NTP's arguments on the merits of patentability have been rejected by the Patent Office," said RIM in a statement.

This latest action is a precursor to continued examination and a Final Office Action by the Patent Office.

Declarations and statements filed yesterday in the U.S. District Court for the Eastern District of Virginia from wireless service providers claim government users could not easily be isolated from a Blackberry service shutdown without considerable hardship.

Attempts to filter essential personnel and agencies would be a logistics nightmare, according to experts and companies that now provide wireless services to the government.

"Implementing such an exemption for exempt customers would require a significant outlay of resources in terms of equipment, manpower, and finances," said Greg Santoro, vice president of product innovation at Sprint Nextel, which provides Blackberry services to hundreds of thousands of federal, state and local government users.

Selectively denying services to users could also impact Sprint-Nextel's bottom line and result in revenue loss, he added in the declaration. If required, Sprint would only be able to identify fewer than 5 percent of white-list candidates due to the close correlation of government contracts and third-party agencies.

NTP had previously suggested that the U.S. government could develop a "white list" of users who would be exempt from a general service shutdown as a result of a court-ordered injunction. This white list would reportedly include such "first responder agencies as the American Red Cross and state and local fire and police departments."

On Feb. 1, RIM filed a non-confidential response to NTP's opening memorandum and injunction request with the U.S. District Court.

In that response, RIM said that if an injunction is applied, it should not impact products already sold by RIM and for which NTP may be awarded monetary damages. Doing so, RIM claims, would constitute "double recovery."

RIM also maintains that NTP's action would create a "virtually perpetual proceeding" since it would require continued detailed reporting of activities involving the company and its technology for the life of the patents.

A major decision involving the patent infringement case, which has dragged on since 2002, may come on Feb. 24 when U.S. District Judge James Spencer is scheduled to hear both sides and decide whether to impose an injunction that might shut down all of RIM's U.S. services, including users in the government sector.

In an unrelated development, RIM announced today that the English High Court in the U.K. has ruled in favor of RIM in a patent infringement case involving InPro Licensing, a Luxembourg-based company that acquires and manages intellectual property portfolios.

RIM initiated this action in response to a European patent-infringement suit filed by InPro in Germany, which was last week deemed invalid by the Nullity Court in Munich.

The IP in question in this suit involved the proxy server system of mobile devices and their ability to interact with remote servers, according to data available from InPro. It is not yet known if InPro will appeal the U.K. court decision.



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