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Legal legend David Boies won't get another crack at Microsoft

Summary: Barnes & Noble thought it had a strong defense against allegations that its Nook e-reader infringes on Microsoft patents. It even hired a legendary antitrust lawyer to lead that part of the case. Now a judge appears to have given Microsoft a key victory.

Ed Bott

By for The Ed Bott Report |

Microsoft has been on a roll lately with makers of Android devices, convincing a large number of them to sign patent licensing agreements and pay royalties to Microsoft for every Android device sold. The latest is LG, which signed a deal earlier this month.

As my colleague Mary Jo Foley notes, that makes a total of 11 patent-licensing deals Microsoft has signed with Android and Chrome OS makers. Microsoft officials claim that “more than 70 percent of all Android smartphones sold in the U.S. are now receiving coverage under Microsoft’s patent portfolio.”

But phones aren't the only devices to run on Android. The Nook e-reader family from Barnes & Noble is Android-based, and the company is a notable holdout. Last March Microsoft filed a patent infringement lawsuit in a U.S. District Court in Seattle.

Today, Microsoft won a key battle in that case, when an administrative law judge at the International Trade Commission threw out Barnes & Noble's primary defense in the case. Florian Mueller of FOSS Patents found the decision in a listing of orders not yet publicly available:

Initial Determination Granting Microsoft's Motion for Summary Determination of Respondents' First Affirmative Defense of Patent Misuse

The part I found most interesting about Mueller's analysis was this blast from the past:

Barnes & Noble bet heavily on its patent misuse defense. It stressed this one by making it its First Affirmative Defense, and it invested heavily. It even brought former Microsoft antitrust foe David Boies on board. Based on today's order, Mr. Boies is very unlikely to get to complete any unfinished business he may have with Microsoft. More importantly, it's hard to see how Barnes & Noble can gain serious leverage against Microsoft. It doesn't have any such thing as a significant patent portfolio that it could use. Playing the "antitrust" card was its only chance to bring any counterclaims at all.

Boies was the giant-killer who was hired by the U.S. Department of Justice in the 1990s to lead the successful antitrust case against Microsoft. B&N was no doubt hoping that Boies could work his magic again, with a similar antitrust complaint.

Alas, that gambit doesn't appear to have worked out.

The trial starts on Monday.

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24 comments
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  • Yep ...

    ... the ITC didn't even consider whether MS was abusing its supposed monopoly on mobile platforms (with its whopping less than 2% market share). MS isn't even obligated to license its patents to begin with.

    This whole thing kind of reminds of an episode of the TV sitcom Wings from the 90s. Lowell lost a friend and mentor, and went through the 5 stages of grief: Denial, Anger, Bargaining, Depression, and Acceptance. It looks like Barnes & Noble is undergoing the same thing.
    P. Douglas
    Reply Vote

    • RE: Legal legend David Boies won't get another crack at Microsoft

      @P. Douglas - Pretty good analogy. I think it's high time for B&N to join the club so to speak!
      jamboy34
      Reply Vote

    • this ruling is a disgrace

      @P. Douglas
      Legal scholars will surely appeal it and overturn this corrupt judgement!
      Patent abuse against FOSS is cristal clear here, even for a lay person!
      The DOJ should reopen the M$ antitrust file immediately and stop the latest dirty tricks from M$.
      LlNUX Geek
      Reply Vote

      • RE: Legal legend David Boies won't get another crack at Microsoft

        @Linux Guru Advocate

        Someone always pays the piper. Apparently FOSS doesn't garner enough revenue to do so. Ruling stands. Patents are patents. Welcome to the world of 'give away' software. In the good ol' US, people that create and develop things are granted immunity to your kind, which would stand in the way of developers that feel their time and effort is worth recompense. But, by all means, stand by your convictions, just don't claim yourself as victim when EVERYONE around you is working for a living.
        FuzzyBunnySlippers
        Reply Vote

      • RE: Legal legend David Boies won't get another crack at Microsoft

        @Linux Guru Advocate <br>Just because you are making a product under an open source licence doesn't mean that you can ignore the law. <br><br>If Microsoft have a patent on a piece of technology or process, you have to avoid its use or seek to licence it, even if you are opening the source code afterwards - in fact, FOSS makes it even easier for IP rights holders to state their case, because your misuse of patents is already in the public domain for all and sundry to see.<br><br>Edit: I'm not defending Microsoft or its actions here, or the pathetic state of the US patent system, just stating a fact.
        wright_is
        Reply Vote

    • RE: Legal legend David Boies won't get another crack at Microsoft

      @P. Douglas - Problem is, B&N are still stuck in denial! ;)
      Sgt. Colon
      Reply Vote

  • Am still rooting for B & N (at least they're putting up a fight)

    From the article:
    "Boies was the giant-killer who was hired by the U.S. Department of Justice in the 1990s to lead the successful antitrust case against Microsoft.

    'Successful' until it was finally decided that Microsoft would not be broken up into an operating systems company and an applications company. Kind of like the sports cliche: "Snatching Victory from the Jaws of Defeat".

    And just think, had the breakup of Microsoft occurred as was recommended, the iPad would likely be running Microsoft Office today.
    Rabid Howler Monkey
    Reply Vote

    • Why would you root for B&N?

      @Rabid Howler Monkey <br><br>If MS has valid patents that they violate why would you want them to continue to steal IP? Just because it's Microsoft it's okay to take what they've spent the time doing R&D on and turning into their own products. That's not exactly right.

      Edit - For the record, I'm not rooting for either company. I hope that whoever is in the right comes out ahead. B&N will likely waste a huge sum of money and end up paying royalties afterward anyway. Seems kind of pointless for them.
      LiquidLearner
      Reply Vote

      • RE: Legal legend David Boies won't get another crack at Microsoft

        @LiquidLearner
        The reason I'm rooting for B&N is mainly because of MS' antics both past and present. I think B&N sums it up well in their legal briefs. When MS declares that Linux/Android violates their IP but won't identify it unless you sign an NDA, how can those violations be removed? When one of those is their very precious long/short file name mapping, how can they be taken any other way? And the only reason that is 'precious' is because of their >90% desktop market share where to interoperate you have to follow their quirks. That is worth more than a license to WinPhone 7?

        Of course, this means that I do my best to stay away from MS' products.
        BorgX
        Reply Vote

      • If MS has valid patents, then the one stealing is not the user

        @LiquidLearner It is the DEVELOPER in this case Google. And Google has the tendency to knowingly steal first and ask for forgiveness later. Anybody remembers when Google tried to make money by coping books that they did not have the right to even touch?

        But to be fair ... I don't disagree. If somebody else is making money with technology you developed, then you have the right to get compensation. Even if that person is a company using a free product.
        wackoae
        Reply Vote

      • RE: Why would you root for B&N?

        @LiquidLearner Microsoft has been hiding the patents in question behind NDAs. B & N has 'called' Microsoft's 'bet' (or 'bluff'?) forcing Microsoft to show it's 'cards'. Meaning that the patents in question will finally see the light of day. We will now find out whether or not they are valid.

        With regard to any invalid patents, there's lots of blame to go around. The U.S. Supreme Court for ruling that software is patentable. The USPTO for having granted patents that should have never have been granted. The U.S. Congress for taking funds from the USPTOs cookie jar (the USPTO is supposed to be self-funded). And Microsoft for failing to properly research patent applications before sending them off to the USPTO.
        Rabid Howler Monkey
        Reply Vote

      • RE: Legal legend David Boies won't get another crack at Microsoft

        @LiquidLearner Yep, and then they will probably go bankrupt. It's too bad, B&N make a great E-Reader (nook color).
        T-Wrench
        Reply Vote

  • RE: Legal legend David Boies won't get another crack at Microsoft

    so far the only ones taken a microsoft licence as the ones that already hold a microsoft licence. The conversation is "You want to keep your microsoft licence then you have to pay us for using android but don't worry, we'll give you the money back in the way of free promotion etc"
    deaf_e_kate
    Reply Vote

  • RE: Legal legend David Boies won't get another crack at Microsoft

    I guess B&N will just have to get the patents INVALIDATED. They are JUNK anyway.
    BrentRBrian
    Reply Vote

  • I am fit to be tied.

    Moving on.
    Dietrich T. Schmitz *Your
    Reply Vote

    • RE: Legal legend David Boies won't get another crack at Microsoft

      @Dietrich T. Schmitz * Your Linux Advocate You dont need to be fit, in order to be tied
      Franciscus101
      Reply Vote

  • So, let me get this straight

    Bott says that Boies won't get a shot at Microsoft, yet he finishes his blog of doom by saying, "The trial starts Monday."

    Call me naive, but if there's a trial, then isn't Boies going to get a shot?

    Editing failure? Completely pants blog? Incompetence? At best a little bit premature imho. Ah well, it's not real life, it's just zdnet.
    ego.sum.stig
    Reply Vote

    • RE: Legal legend David Boies won't get another crack at Microsoft

      @ego.sum.stig@... yep, don't ever believe what a microsoft evangelist tells you, they only read the marketing and believe it all
      deaf_e_kate
      Reply Vote

    • It's only the beginning, not the end.

      @ego.sum.stig@...

      To say there's been alot of spinning done on this story is an understatement.

      But, per usual, one needs to get a 'concensus' of what is or isn't happening when it comes to the necessarily complicated world of litigation.

      I don't take stories from ZDnet at face value (oh my!).

      So, if you would like to maintain your 'objectivity' and take this story with a grain of salt, stop by GrokLaw and get a decidedly different interpretation of what is happening with Microsoft v Barnes&Noble.

      Pamela Jones at her best:
      h-t-t-p://www.groklaw.net/article.php?story=20120131125833581

      Clearly, things are just getting warmed up.

      I just hope that Ed did not hurt himself when his knee hit his chinny chin chin.
      Dietrich T. Schmitz *Your
      Reply Vote

      • RE: Legal legend David Boies won't get another crack at Microsoft

        @Dietrich T. Schmitz * Your Linux Advocate <br><br>I just read up on the Groklaw link you sent. While it is interesting, I don't think I'm alone wondering if it is just a site full of "armchair" lawyers. The sad but true is.. paid people work differently, and are held at higher regard. I am in no way knocking the cause, but maybe the fundamental infrastructure. I don't know that fighting for 'free' everything fits into a capitalist society. It's hard to convince people to you side, when there are few actual jobs to be had. People have to feed their family, and I must admit wondering how even you do so while promoting 'free' software. Maybe you could enlighten me (us?).
        FuzzyBunnySlippers
        Reply Vote
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