Updated from 2:33 p.m. EDT
Dealt another setback in a long-running patent dispute,
Research In Motion
is throwing a Hail Mary pass.
On Friday, the Court of Appeals for the Federal Circuit on Friday denied RIM's request to have its case re-heard by an en banc panel of 12 judges. The appeals court had previously
upheld a lower court ruling that RIM had infringed on several patents held by NTP.
In response to the appeals court's latest decision, RIM plans to appeal the case to the U.S. Supreme Court. RIM plans to ask the circuit court to stay the case until the Supreme Court decides whether to hear it.
That decision is likely to be negative, said Jeff Neuberger, a patent attorney with Brown Raysman Millstein Felder & Steiner in New York.
"The odds of any particular case being heard by the Supreme Court are very small," said Neuberger.
Even the company acknowledged that its chances for a re-hearing by the high court were slim.
"While en banc review at the Federal Circuit or further review by the Supreme Court is generally uncommon, RIM continues to believe this case raises significant national and international issues warranting further appellate review," the company said in a statement.
Company representatives did not immediately respond to requests for further comment.
NTP had expected RIM to appeal the case to the Supreme Court, because the BlackBerry maker had previously stated its intention to do so, said John Wyss an attorney with Wiley Rein & Fielding in Washington, D.C., which represents NTP. Still, Wyss questioned RIM's motives behind the appeal and whether the high court would take the case.
"Certainly, they have a right to seek review. Whether the Supreme Court has any interest in the case is another question," he said, adding that RIM has "been trying to keep the case going as long as they can."
The market also seemed to question RIM's position in the case. The stock fell nearly more than 7% after a trading halt. In recent trading, the company's shares were off $4.95, or 7.4%, to $62.02.
Although the odds are against the Supreme Court hearing the case, RIM has good reason to ask for a higher court review, said Neuberger. The case could ultimately cost RIM hundreds of millions of dollars -- and even bar it from offering its BlackBerry services in the U.S., which is by far the company's largest market.
"The stakes are so big, that it's probably worth making the arguments" encouraging the Supreme Court to review the case, Neuberger said. "There's always a chance
the Supreme Court will take it."
Even if the high court doesn't ultimately review the case, it could take months to decide one way or another, giving RIM more time to pursue a settlement with NTP, he noted.
A federal district court in 2002 found RIM guilty of infringing 16 patent claims held by NTP, and granted NTP $58 million in damages. Last December, the appeals court largely upheld the lower court decision, affirming that NTP infringed 11 patent claims. The appeals court
narrowed that ruling in August, reversing four more claims of infringement while upholding seven.
Unless the Supreme Court decides to review the case -- or the companies decide to settle out of court -- the case will return to the lower court. A previous
settlement attempt, which would have required RIM to pay NTP $450 million,
fell through in June. Assuming the companies don't settle before hand, the lower court will determine a judgment against RIM.
Wyss was unaware of any present settlement discussions, although he added that "NTP has always been willing to talk with RIM about settlement."
Friday's court ruling was expected by some legal experts. After the appeals court in August modified its original ruling, NTP's attorneys argued that the appeals court was highly unlikely to revisit the case in an en banc panel.