That pressure [for RIM to settle] persists even though the Patent Office has issued preliminary rulings invalidating most of the disputed patents held by NTP, said Maebius, a former Patent Office examiner whose firm is not involved in the case.
U.S. District Court Judge James Spencer, who has overseen the case since it was filed more than four years ago, has said in the past that his rulings and timetable won't be influenced by the patent re-examination.
That's reasonable, given that Research in Motion had a full trial before a jury whose infringement finding was upheld on most counts on appeal. A judge's mandate is to rule given the situation at the time of the trial, Maebius said.
"He's within his rights to ignore the re-examination, especially given the timetable," he said.
That makes it unlikely Spencer will wait to issue an injunction during the hearing set for next month if the two parties can't reach a settlement. Final legal briefs on the injunction are due Feb. 1.
"This judge has said 'enough is enough,'" said Rod Thompson, a partner in the San Francisco office of Farella Braun & Martel who's practiced patent law for more than a decade. "I don't think his attitude will change just because the Patent Office is moving faster," Thompson said.
Although the law isn't clear cut on the issue, it's unlikely that NTP would be able to collect any future royalties from a licensing agreement if the patents are invalidated.
RIM is on the hook for at least $200 million in past damages. That liability won't go away regardless of the outcome of the patent re-examination, according to Thompson.