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Optical/IP

Here We Go Again

"Not again."

That's the lament from IT departments across America today with the news that, once again, BlackBerry-maker BlackBerry is being sued by a rival mobile-email provider (in this case Visto Corp. ) for patent infringement.

"We spent a long time coming up with a contingency plan while the last suit [NTP Software vs RIM] was in progress," says Bryon Jackson, IT director of California State University Long Beach, which has more than 100 BlackBerry users. "Then after we got it finalized we found out later that week that the suit had been settled."

Now, says Jackson, his department supports alternative wireless-email solutions provided by Verizon Wireless and Cingular Wireless . But like many IT managers, he believes the patent disputes that continue to plague the mobile email market have slowed down the spread of the technology beyond the 6.5 million or so current users.

"The last suit definitely slowed down our deployment of BlackBerries," adds Jackson. "We basically put a stop to it, because we weren't sure if we would have to go to another type of unit. We just stopped purchasing them."

"It's unfortunate, because it casts this cloud over the entire industry," says Harvey Anderson, general counsel for Seven Networks Inc. , which lost a jury verdict last Friday in a patent infringement suit brought by Visto. "I wish we could try and compete in the marketplace, instead of trying to achieve in the courts what can't be done in the marketplace."

The NTP suit dragged on for years before RIM paid Visto $612.5 million to settle in early March. Both the final resolution of the case against Seven, which will likely appeal the final judgment, and the new suit against RIM will likely linger in the courts for years. (See RIM, NTP Come to Terms.)

Such protracted battles put IT managers in a quandary: Roll out mobile email devices now, or hold back and wait for the legal dust to settle?

"I'd say business consumers should avoid long-term contracts and keep their ears to the ground," says Justin Hectus, director of IT at law firm Keesal, Young, and Logan, which has offices in Long Beach, San Francisco, Seattle, Anchorage, and Hong Kong, "but delaying a wireless deployment with the expectation that ultimately there will be a clearly safe choice is not a very good move."

Visto CEO Brian Bogosian struck a combative note on Monday in a conference call with reporters, saying a monetary settlement is not what his company is after: "At this time we are not seeking any royalty from RIM -- we're asking the court to halt all sales of BlackBerry in the U.S."

That is almost certainly just a tactical stance -- Bogosian added that "We're businesspeople," and that he would listen to reasonable settlement offers from RIM. In the meantime, though, it's clear that IT managers have a long, sweaty summer ahead as other mobile email litigation gets played out in the courts and in the press. Visto now has patent-infringement suits pending against Microsoft Corp. (Nasdaq: MSFT) and RIM, in addition to the Seven case, which will likely be appealed after the judge delivers a final judgment.

In addition, Seven has filed a counter-suit against Visto, in the same Marshall, Texas federal court where the other patent cases have been heard, that will come to trial sometime in the next few months. The Seven suit, says Anderson, was filed as a reluctant yet necessary response to what he describes as Visto's intransigence.

"Who are they going to sue next, their customers?" he asks. "The customers don't like vendors suing each other."

On that, at least, everyone can agree.

— Richard Martin, Senior Editor, Unstrung

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