Update: No Black Friday for BlackBerry

A judge stopped short on Friday of ordering an immediate shutdown of millions of BlackBerry portable e-mail devices made by Research In Motion.

But U.S. District Judge James Spencer said there was no escaping that RIM had been found to be infringing on NTP’s patents and he would issue a decision on an injunction “as soon as reasonably possible.”

Judge Spencer could still shut down the mobile e-mail service to at least some U.S. users and award millions in damages to RIM’s legal adversary, NTP, which won a patent infringement suit against RIM in 2002.

Decisions made by the U.S. Patent and Trademark Office (USPTO) that have been calling into question the validity of the NTP’s patents might affect Judge Spencer’s ruling. This past week, the USPTO issued what’s called a Final Office Action that found all of the NTP claims in one of the patents to be invalid. NTP can appeal these final action rulings to a USPTO board and eventually to the federal courts.

What weight, if any, these patent decisions will have on Judge Spencer’s decisions finally will become clear Friday.

RIM recently announced a few sketchy details of new software, dubbed the workaround, that the company says will allow U.S. customers to continue using the service, without using the technology covered by the NTP patents.

Thursday, on the eve of the hearing, NTP issued a press release charging that RIM was guilty of “numerous mischaracterizations” about the validity of the NTP patents. NTP argues that the courts have repeatedly upheld the validity of the patents, either by verdict and ruling or by declining to review or overturn lower court findings. NTP also asserts that the current review by the Patent Office is part of a lengthy “re-examination process” that includes both internal appeals and federal court appeals.

But more inflammatory is NTP’s assertion in the release that RIM used “lobbyists and political connections to exert political influence to have the [US]PTO reexamine NTP’s patents.”

NTP charged that RIM has used “money, power and political influence” to “inappropriately influence the U.S. Patent Office process. The NTP statement says that government documents, which it obtained under a Freedom of Information Act request, “indicate an attempt to subvert the U.S. intellectual property system.

The company says the documents, which have not been made available publicly, reveal that there were previously undisclosed communications between RIM’s lobbyists and the Patent Office. One of the lobbyists, NTP says, is former PTO official David Stewart. The statement also says the Canadian embassy “sought to find a means” for the Canadian government to “exert pressure” on the Patent Office. RIM is headquartered in Canada.

NTP also says that documents reveal that, after losing its appeal in the U.S. Circuit Court of Appeals, RIM had undisclosed meeting with Patent Office officials even though the office’s regulations “expressly forbid such meetings.” The statement asserts that requesting a patent reexamination after losing a jury verdict is “plainly prohibited” by U.S. law, namely the U.S. Patent Act, section 317 in Title 35 of the United States Code.

A Network World request to NTP’s PR agency for copies of these documents was ignored.