Slate's Jurisprudence: BlackBerry Net to Go Dark?

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The nationwide network for BlackBerry, a high-tech portable e-mail gadget, may go dark as the result of a lawsuit. Madeleine Brand talks to Slate legal analyst Dahlia Lithwick about the details of a judgment in a recent patent lawsuit filed against the makers of the BlackBerry, and what it could mean for users.

MADELEINE BRAND, host:

Millions of American users of the mobile e-mail devices known as BlackBerrys, may soon start to get some feeling back in their typing thumbs, but they won't be happy about it. Several pending legal decisions could force the company that makes BlackBerrys--which are also jokingly dubbed `CrackBerrys'--to turn them off. Joining us to help explain what's going on is Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY, and a CrackBerry addict, I understand.

DAHLIA LITHWICK (Slate): Don't out me.

BRAND: Well, I understand, Dahlia, this is basically a patent dispute. What's going on?

LITHWICK: That's right. It's a dispute between the Canadian-based maker of BlackBerry, the firm called Research In Motion, and a very small licensing company here in Virginia called NTP. Research In Motion, in the late '90s, developed some technology that would essentially just forward e-mail very, very quickly to a mobile device. NPT is disparagingly known as a, quote, "patent troll." That means they don't actually make anything or do anything; they just sit on a bunch of old patents and eventually they cash in. That's legal. So NPT holds the patent to something that's very sort of broadly describes the kind of technology that BlackBerry uses. So they sued under a theory of patent infringement.

BRAND: And there have already been some court rulings on the case. What did they say?

LITHWICK: That's right. In a big ruling in 2002, a jury in Virginia found that, indeed, five patents had been infringed and they gave an award to NTP. The judge went on and barred the sale of BlackBerry in the United States. Now he put that decision on hold while Research In Motion appealed, but in 2004, a federal appeals court upheld the judgment against Research In Motion, and now it's on appeal to the Supreme Court of the United States.

BRAND: So, Dahlia, any chance of a settlement between the parties here before it goes up to the Supreme Court?

LITHWICK: Well, Madeleine, there was a lot of talk this past summer of a major settlement deal that then was just scuttled at the last minute, in part because both sides are sort of running around doing extracurriculars. On the one hand, NTP is making all sorts of side licensing deals with other forms of technology, essentially saying, `Not only are we going to put BlackBerry out of business, but we're not going to take a loss for doing so.'

And in the meantime, BlackBerry is relying on very recent rulings that are coming out of the United States Patent Office, who are re-evaluating the patents held by NTP and saying, at least preliminarily, that these patents are not valid, which would make the whole case go away. So everybody's kind of got an incentive not to settle while this other side business goes on.

BRAND: So meanwhile, what options do BlackBerry users have at this point?

LITHWICK: Well, this has been very, very good news for Microsoft, for Nokia and others who are developing wireless technologies. Certainly, Research In Motion says that they are on the brink of developing the technology for what they call a work-around, in other words, saying even if this gets blacked out under the court order, BlackBerry users would not be technologically hampered. In fact, the United States government has gotten involved in this case, saying 200,000 federal employees rely on their BlackBerrys, and so whatever happens they need to be protected from a judgment in this case.

BRAND: Because it's become essential to the functionings of the US government?

LITHWICK: Because it's become essential to the functionings of anyone like me, lunatics who are checking their BlackBerry while they drive their car.

BRAND: Oh, gosh.

LITHWICK: It's really appalling, Madeleine. When they say `CrackBerry' they're not kidding. Of course, I'm kidding, Madeleine. I only check my BlackBerry in parking lots.

BRAND: Well, that's interesting because you'd think that there would be something equally appealing and addictive, but there isn't.

LITHWICK: I think that--certainly Microsoft says that they're about to occupy this field with their own technology and, you know, I think the most likely scenario most analysts are saying is that this will go ahead and settle eventually, long before my BlackBerry is yanked from my cold, dead fingers.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for us here at DAY TO DAY.

Thanks, Dahlia.

LITHWICK: My pleasure, Madeleine.

BRAND: Stay with us on DAY TO DAY from NPR News.

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