The “Workaround”

Research in Motion has released information about what they call a “workaround” for NTP’s patents:

Currently, when the [Network Operations Center] determines that a BlackBerry device is outside of a wireless coverage area, it queues the message and resends the message when the BlackBerry device becomes available, without interaction with the BlackBerry Enterprise Server (or BlackBerry Internet Service).

With the BlackBerry Multi-Mode Edition software update, the NOC no longer queues messages. If a BlackBerry devices is out-of-coverage, the NOC will inform the BlackBerry Enterprise Server (or BlackBerry Internet Service) that the messages cannot be delivered at that time. The BlackBerry Enterprise Server (or BlackBerry Internet Service) will be queue the messages until it is notified by the NOC that the BlackBerry device is available.

Does this “work around” NTP’s patents? I have no idea. Here’s what’s claimed by one of NTP’s patents:

A system for transmitting originated information from one of a plurality of originating processors in an electronic mail system to at least one of a plurality of destination processors in the electronic mail system in accordance with the invention includes a RF information transmission network for transmitting the originated information to at least one RF receiver which transfers the originated information to the at least one of the plurality of destination processors, at least one interface switch, one of the at least one interface switch connecting the electronic mail system to the RF transmission network and transmitting originated information received from the electronic mail system to the RF information transmission network. The originated information is transmitted to a receiving interface switch by the electronic mail system in response to an address of the receiving interface switch and the originated information is transmitted from the receiving interface switch to the RF information transmission network with an address of the destination processor to receive the information.

I don’t have the foggiest idea whether the Network Operations Center or the BlackBerry Enterprise Server count as “originating processors,” “destination processors,” or “interface switches.” And frankly, I don’t think it’s because these are technical terms of art that I’m just not familiar with. More likely, there is no clear answer as to how the vague descriptions in this very clumsily written patent apply to technology created more than a decade later.

So I don’t think it’s obvious that RIM’s new software “works around” NTP’s patents, although it’s also not obvious that it doesn’t. However, the “workaround” does do two very valuable things from RIM’s perspective: first, it buys them time. If the judge orders a shutdown, RIM can switch on their “workaround,” and then we can have another round of litigation about whether the workaround is infringing. It doesn’t really matter if RIM wins that argument, as long as they can stretch it out long enough for the patent office to invalidate NTP’s patents.

The other thing this does is it gives the judge a face-saving opportunity. Right now, he’s backed into a corner, because shutting down the BlackBerry network over patents that are about to be invalidated would be ridiculous, but on the other hand, he doesn’t have a lot of alternatives under the law. So this gives the judge a way out: he can rule that RIM’s new version “works around” NTP’s patents, and no one other than NTP patent-troll-in-chief Donald Stout will be the least bit upset.

One thing is crystal clear, though: this sort of patent is an affront to the rule of law. Determining what counts as infringement shouldn’t be a crapshoot.

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