This was dated 10/13 from an internal 'update' document. This is only the latter part of the document, concerning contingencies.
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While further review by the U.S. Supreme Court is generally uncommon, RIM continues to believe this case raises significant national and international issues warranting further review. As such, RIM is petitioning the Supreme Court to hear this case and asking the CAFC to stay its ruling until such time that the Supreme Court has made a decision.
If the case returns to the District Court for further proceedings, the court will be asked to consider all matters relating to the CAFC rulings, the Patent Office re-examinations, and the settlement agreement announced in March, 2005. RIM would also expect NTP to request a new injunction at that time. Notwithstanding the recent media stories and speculation on this matter, the legal process to secure a new injunction would need to be restarted by NTP and the courts would need to make new decisions on the merits of granting an injunction based on current facts and substantial change in circumstances from the last time it considered NTP’s injunction request. NTP appears however to believe that references to a potential injunction in media articles will provide them with a negotiating advantage by creating pressure on RIM through RIM's stakeholders. RIM regrets any confusion or inconvenience that may have stemmed from this situation and appreciates its customers understanding as this ongoing matter proceeds through the legal process.
While RIM believes that the Patent Office re-examinations and previously unconsidered prior art will carry considerable weight with the courts, RIM has also continued to prepare contingency arguments and plans in case the courts were to decide otherwise: and while RIM cannot predict the actions of an independent court, the court would certainly have the opportunity to consider the Patent Office’s analysis and determinations as factors against issuing an injunction (whereas the original injunction was considered by the courts prior to the Patent Office’s analysis and rejections). Should NTP request a new injunction, the courts would then be effectively asked to decide whether to enjoin a company under patents that the Patent Office is suggesting should never have been issued in the first place.
As a further contingency, RIM also is considering work-around designs to avoid NTP’s patent claims as defined by the courts to date, so as to allow RIM to continue to offer service to its customers without interruption. Details of the workaround remain subject to confidentiality restrictions at this time.
This dispute with NTP is ultimately an industry-wide concern and reflects the nature of the environment in which technology firms operate. It is a lengthy and multifaceted process, but RIM continues to engage in this process in order to protect its interests and the interests of its customers, partners and other stakeholders. RIM looks forward to sharing future updates on the status of this legal dispute; however, there are extensive confidentiality restrictions and legal strategy issues involved that prohibit RIM from sharing many details. With that in mind, RIM will continue to share information where appropriate.
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And a bit on the USPTO proceedings.
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Apart from the court proceedings, there have been other developments related to the NTP patents. Shortly after the 2002 District Court trial, the Director of the United States Patent and Trademark Office (“Patent Office”) announced that he was initiating a re-examination of 5 NTP patents (4 of which were litigated against RIM) because his Office had identified a “substantial new question of patentability” regarding those 5 patents. RIM requested that the remaining 3 NTP patents (1 of which was litigated against RIM) also be re-examined and the Patent Office agreed. As a result, all 8 NTP patents (5 of which were litigated against RIM in total) were ordered to be re-examined by the Patent Office. As of September 29, 2005, the Patent Office had issued First Office Actions in relation to all 8 NTP patents and all of the claims in all of these 8 patents have been rejected by the Patent Office as not being patentable. Further, all of the 16 claims asserted against RIM in the litigation were rejected on grounds not considered in the District Court trial. This comprehensive rejection by the Patent Office certainly corroborates RIM’s initial stance about the invalidity of these patents.
It is also extremely relevant to note that starting in February of this year, the Patent Office modified its re-examination process to apply a higher degree of scrutiny to First Office Actions. As a result, rejections in First Office Actions must now be supported by the unanimous decision of a panel of three senior patent examiners, which is the same criteria previously required only for Final Office Actions. As such, overcoming these First Office Actions will be substantially more challenging for NTP in comparison to a typical patent re-examination under the old process (which did not require panel review). At this juncture, based upon past Patent Office practice, it is reasonable to expect that the rejections should continue to a Final Office Action.
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