Federal judge hints at BlackBerry ban, urges deal

RICHMOND, Va. -- A federal judge on Friday strongly hinted that he is prepared to issue a ban on BlackBerry wireless e-mail devices and pushed for a settlement between the two companies feuding over the device's patent rights.

"After all of the petitions, politics and lobbying, the essential truth" has not changed, District Judge James Spencer said at a court hearing here. The only question before the court, he said, is "what is the appropriate scope of injunctive relief?"

Spencer is overseeing a multimillion-dollar lawsuit between the Arlington, Va.-based patent-holding company NTP and the BlackBerry maker Research in Motion, which is based in Toronto. NTP first filed a patent-infringement lawsuit against RIM for violating several of its wireless e-mail patents in late 2001.

Spencer's statement referred to the frenzied, last-minute filings that both sides, as well as other large, brand-name companies, sent to the court this week to address a potential ban on using BlackBerries in the United States.

The media conglomerate Viacom and the corporate law firm of Skadden, Arps, Slate, Meagher & Flom on Thursday told the court that any injunction could be disastrous for them.

Meanwhile, NTP filed several documents designed to show that RIM had worked behind the scenes to unduly influence the Patent and Trademark Office and its parent body, the Commerce Department.

"I must say that I am surprised -- very surprised -- that you have left this decision to the court," Spencer said. "I've always thought this was a business decision."

He added that the two sides instead are going to be subjected to an imperfect legal decision -- one that neither side will like. "That's what you're going to get," he said. "The case should have been settled."

Spencer chided RIM for "ignoring" a 2002 jury decision in favor of NTP. The jury found that RIM knew NTP's patents existed but decided to infringe anyway. That finding increases monetary damages significantly, and damages were initially assessed at $23 million. The judge later issued an injunction against BlackBerry usage but froze it pending an appeal.

On Friday, NTP requested $126 million in damages, calculated from the now-significantly larger user base of BlackBerries. The company's attorneys also said the judge should issue an injunction against the existing commercial user base of several BlackBerry models.

RIM's attorneys said the case should be re-argued in light of an appeals court ruling, and the judge should reconsider the way damages are calculated. They also argued that an injunction would not be in the public interest.

Spencer said he would decide on the question of damages first but needs more time to think about the injunction. If he decides to issue one, he said, he will make sure government users of BlackBerries are not subject to the blackout.

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