Update: RIM says work-around in place for BlackBerry service

The company says it's prepared if a court shuts down its service

Research In Motion Ltd. (RIM) today announced that it has developed and tested software that would enable it to continue to offer its wireless e-mail service to BlackBerry users if a court orders the company to shut down the current form of the service in the U.S.

The work-around has been the subject of much speculation because RIM had said it was developing such software but was reluctant to describe how the new system would work. RIM said it has tested the software, which will ship on BlackBerry devices going forward and will be available for download by current users at "a later date." The software will support the service as it currently works but won't rely on technologies based on patents held by NTP Inc., the company with which RIM has been involved in a lengthy legal battle.

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A court ruled in 2003 that RIM had infringed on NTP patents, starting a legal fight that continues. However, in an unusual turn of events, the U.S. Patent and Trademark Office (PTO) has preliminarily ruled that all of the relevant NTP patents are invalid. Until the PTO makes final judgments on those patents, though, the court battle continues. That includes a ruling that could force RIM to turn off its service in the U.S.

Later this month, a judge is expected to decide whether RIM should be ordered to shut down its service based on a request from NTP.

RIM said it still believes there's a good chance the judge won't order the service shut off but developed the work-around as a contingency plan.

RIM has filed a patent application for the work-around software, which it said offers the same functions and performance as the existing service but doesn't use technology described in NTP's patents. It will soon include the software on new devices, which will run on the existing software platform unless RIM is ordered to shut down its service. In that case, RIM can remotely activate the work-around software from its network operations center.

The work-around has been designed to work with either BlackBerry Enterprise Server or BlackBerry Internet Service, RIM said. The work-around, known at BlackBerry Multi-Mode Edition, makes underlying changes to the message delivery system, which RIM said will be activated "if necessary" because of the patent dispute.

"Although users would be required to download and install the software update ... the update will have no visible effect on the end users' ongoing experience with the BlackBerry device, software and service," RIM said. The company noted that administrators of BlackBerry Enterprise Server may notice additional log entries, but it said there will be no other visible changes to BlackBerry Enterprise Server. The security, scalability and management features of the service will remain unchanged.

The work-around is designed to operate in standard mode and, when a user receives service from a U.S service provider, in U.S. mode, RIM said.

Customers will need to install the software update both on individual BlackBerry devices and on the BlackBerry Enterprise Service, RIM said, but users, service providers and IT managers won't see any changes in how a device is used or administered. Also, application developers will not need to change any existing Java applications.

The software will be provided at no charge, RIM said.

NTP's only reaction to the RIM workaround documents and proposal came from James Wallace Jr. on Friday, in which he referred to RIM's own court memorandum from Jan. 17 that discusses the probable difficulties RIM and RIM's customers could face with any workaround.

"Look at ...RIM's ....brief where they state that [a work-around] will be difficult to install, customers will not like it and will leave, and like anything new, it just might not work," Wallace said in an e-mail.

The brief from RIM to Judge James Spencer that Wallace referred to spends two pages describing possible problems.

"RIM's 'workaround' would create unnecessary concerns, burden BlackBerry users and providers and cause irreparable business injury," the brief says. "Although RIM has developed and tested several software modifications to its present products in this regard, any modifications will cause concern to users and service providers." The brief discusses the "significant effort" a work-around would cause users and their IT managers, saying they "will likely experience typical problems experienced with undertaking upgrades."

Another CIO, John Wade at St. Luke's Health System in Kansas City, Mo., said RIM would have been "irresponsible" had it not developed the work-around. "I'm sure that RIM has done the investment tradeoff of paying off the claim or developing a work-around and the work-around was less expensive."

Wade, who supports about 500 BlackBerry users, added that it was interesting that the work-around was not described as software in alpha or beta mode. "If RIM could get this out in the market in a test mode, they would likely see the cost of a settlement suddenly drop," Wade said.

Two CIOs with hundreds of BlackBerry users said they had reviewed the work-around proposal Thursday and are pleased, saying they feel the RIM service will continue uninterrupted.

"Given the impact on national security, the challenge of implementing any partial injunction and the technical/legal evaluation now required by the published work-around, I'm confident RIM service will continue without interruption," said John Halamka, CIO for Caregroup and Harvard Medical Center in Boston. His office supports 500 BlackBerry users, many in critical health care positions. He has been watching the dispute closely.

Halamka sees the proposed work-around as being "seamless to the user...[with] low impact on the IT infrastructure and staff." He also called the upgrade "easy" to implement, but said much will depend on Feb. 24, when the dispute goes back to court.

"Feb. 24 will be a pivotal day in the history of RIM and the BlackBerry service," he said.

Joe Puglisi, CIO at Emcor Group Inc. in Norwalk, Conn., largely agreed. His IT group supports 500 BlackBerry users at the construction and buildings services company, and he has been weighing alternatives.

"It sounds great," Puglisi said of the work-around. "I am excited and have put all my contingency plans aside. I am now more confident than ever that RIM service will not be interrupted."

In an overview of the changes provided by the workaround, RIM said its e-mail message delivery system will be altered at the company's network operations center (NOC) in Waterloo, Ontario, but those changes will be transparent to users and administrators.

However, the way e-mail messages are queued when a BlackBerry device isn't available will change, RIM said. Currently, when the NOC determines that a device is outside of a wireless coverage area, it queues the message and resends it when the device becomes available without interaction with the BlackBerry Enterprise Server. With the update, the NOC no longer queues messages, RIM said.

If a device is out of coverage, the NOC will inform the server that the messages cannot be delivered at that time, and then the server will queue the messages until the NOC notifies the server that the device is available. This is when an administrator might see an additional log entry not seen under standard operations, RIM said.

Ken Dulaney, an analyst at Gartner Inc. who is familiar with the patent dispute and BlackBerry service, said the work-around appears to affect nothing more than the out-of-coverage event as described by RIM. "E-mail is still going through the same pathway." he said. "It's a simple workaround."

Dulaney said the solution "seems to be a real work-around" that could solve the dispute with NTP because the patents in question deal with storing e-mail in the network.

But Dulaney said that even if customers implement the workaround, they won't know if they are going around the patent problem or not. "NTP would have to say if [the work-around] goes around the patents," he said.

In other words, he said, the legal impact of the work-around remains unclear until NTP reacts. Officials at NTP could not be reached immediately for comment.

"We see the work-around as a negotiating ploy and have always said that, so we will still remain hopeful for a settlement," Dulaney said.

The legal battle between RIM and NTP has been closely watched by IT departments, especially those that support the wireless e-mail service for executives. Some analysts have advised IT departments to create their own contingency plans in case the RIM service is shut down.

The situation has spurred a feeding frenzy of sorts among other "push" e-mail providers keen to step in where RIM could leave a void. Visto Corp., Good Technology Inc., Microsoft Corp., DataViz Inc. and Nokia Corp. are among the companies offering push e-mail.

Puglisi said he believes the case will eventually be resolved in RIM's favor.

"The courts will eventually vindicate RIM," he said. "NTP will be left with nothing but the bad taste left in everyone's mouth."

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