Legal briefs filed last week convey the tone of the multiyear dispute, with charges of misleading a federal judge, claims of anti-Americanism and accounts of vital documents gone missing from a library in Norway. In interviews, attorneys for both sides still disagree as to whether RIM conducted an intentionally fraudulent technology demonstration before a federal jury in 2003.
"Some of what's being said sounds nefarious," said one patent attorney not involved in the case who asked not to be identified.
"I wish they'd settle and get it over with," said a frustrated CIO who has 500 workers relying on BlackBerries and also asked not to be named.
One of the more peculiar revelations in the lawsuit appeared in last week's filings to U.S. District Court Judge James Spencer. NTP said RIM "misleads the court." In a footnote from its brief, NTP refers to its failure in 2005 to root out missing documents from a library in Trondheim, Norway, a former Viking seaport, because it alleges RIM was hiding them.
"NTP made an investigation but could not obtain the documents from the one remote Norwegian library from whence they came because RIM checked out the documents and refused to return them," according to NTP's footnote.
One of NTP's appointed attorneys, James Wallace Jr., said in an interview that NTP was seeking booklets describing wireless services from Telenor ASA, a large Norwegian communications service provider. Those documents might have been relevant to whether NTP's patents for wireless push e-mail had been trumped by "prior art," a term for technology already available before a patent is sought.
David Long, an attorney representing RIM, responded in an interview that NTP was sent hard copies of the exact technical treatise from Telenor that NTP refers to. "It's just disturbing," he said of NTP and the Telenor footnote. "They'll use charged words like that and they are misleading. It sounds like we're up to no good and we're hiding [the document], and that couldn't be any further from the truth."
In response, Wallace said RIM and a RIM consultant, Thomas Pavelko, do not dispute that NTP was delayed by weeks in gaining access to the documents, however. RIM has sought to inform the court how it feels about NTP. In one passage from its own filing last week, RIM says NTP appears to resort to "ad hominem attacks" on RIM "whenever [NTP] has no response on the merits."
RIM adds in a footnote that NTP's rhetoric has even resorted to "waving the American flag at RIM," which is based in Waterloo, Ontario. By contrast, Arlington, Va.-based NTP has no Web site or phone number and is only a patent holding company with no dedicated employees, Wallace said.
While RIM does not refer to NTP as a patent "troll," as many observers of the dispute have done, it does disparage patent licensing companies generally for producing lawsuits to extract royalties.
RIM makes its feelings clear about NTP's actions in the opening lines of its latest brief: "NTP's request for an injunction is about money, not equity. Unlike RIM, NTP is not in the business of selling wireless products or services, or serving the public. Instead NTP is, and always has been, a patent licensing company."
Later in the brief, RIM argues that NTP has admitted that RIM did not copy or even know about NTP's patents or technology, but that RIM instead has "made the investments, put its energies into the business and bore the risk that ultimately resulted in the commercial success of the BlackBerry system."
In an interview, Long said that the dispute between NTP and RIM dispute might help foster a patent-reform effort to reduce the number of claims that can be filed by patent holders and to correct other problems.
"Patent trolls are a relatively new event," he said. "Folks have figured out the patent loopholes and how to exploit them, and this case highlights how the Patent Office needs to be reformed to address the modern needs of the patent system. We're testing the boundaries of a lot of the concepts of patent law, and we're on the cutting edge, although I'm sure the client, RIM, would want somebody else on the cutting edge.
"Most people don't know that patents can be amended after the fact to include what's commercially being offered ... and that was the case here," Long added. "NTP tried to amend claims after it saw BlackBerry being successful."
As one might expect, Wallace does not see the need for patent reforms, and he shrugged off the political significance of NTP's dispute with RIM or even of his ability to earn a contingency fee. RIM's damages could be at least US$125 million, although some observers believe damages could reach $1 billion. "This is small compared to the big pharma cases," Wallace said. " Most of them involve billions in damages."
As a sign of the intensity of their differences, NTP and RIM still hold varying views of what happened in federal court in 2003 and afterward, when RIM officials put on a technology demonstration in Spencer's courtroom before a jury hearing the original patent-infringement lawsuit.
"The judge was so upset with what went on that he stopped the proceeding and left," Wallace said, calling the demonstration "fraudulent." "He came back in and told us that he had to count to 20, he was so upset. Then he told the jury to disregard the whole thing."
According to court documents, in the demonstration, RIM presented inventor David Keeney, who described his company TekNow's software, known as System for Automated Messages, which was developed and sold in the 1980s. Keeney and RIM demonstrated in court that TekNow could wirelessly transmit e-mail. RIM's and Keeney's demonstration was intended to show that TekNow's technology was prior art that would invalidate NTP's patents, first drafted in 1991, court documents say.
But NTP attorneys moved to strike the TekNow demonstration, arguing that the date on the file directory for the demonstration software was after 1991.
Wallace, who was representing NTP at the demonstration in 2003, said NTP attorneys were able to show that the demonstration was using software from 1993, which they noticed because the file directory's size was far too large to be from an earlier SAM software from 1988.
RIM's appeal of the initial case argued that the judge's decision to throw out the demonstration was "an abuse of discretion" since TekNow clearly had software for SAM from the 1980s and that the post-1991 directory dates of the demonstration software "occurred merely because TekNow's license-protection software automatically updates the directory dates with each new installation of the SAM software."
Long, who was not at the 2003 trial, said there was "nothing fraudulent, and it was simply a mistake in copying over the file." He said RIM was able to successfully run the demonstration after the trial with 1980s software and provide evidence of prior art.
Yet Wallace retorted in a separate interview, "How does Long's statement square with RIM appealing, and losing, this issue?"
It is against this backdrop that RIM and NTP present oral arguments in federal court, yet again, on Feb. 24.