Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

Summary: Who would have thought it would be Barnes & Noble rising up to defend the Android OS from Microsoft.

TOPICS: Microsoft

It seems that Barnes & Noble isn't ready to roll over and capitulate to Microsoft's five patent infringement claims, and has filed a 43-page document crammed with what it claims to be prior art challenges to patents.

Here's a quick rundown for those who haven't been keeping up. Barnes & Noble's Nook and Nook Color ebook reader use the Android platform. Microsoft claim that Android infringes on a number of its patents and as such has been strong-arming Android handset and tablet OEMs/ODMs to sign lucrative licensing deals. Microsoft wants Barnes & Noble (and co-defendants Foxconn and Inventec) to pay to use Android. Barnes & Noble believes that Microsoft's claims are flimsy, so rather than pay up, the company is digging in its heels and taking its chances in the courts.

Groklaw has copies of the documents in question. The specific document relating to prior art can be found here [PDF].

Here's a rundown of the five patents in question:

  • 5778372 - A browser remotely retrieves electronic documents from a remote computer network for viewing by a user. For enhancing responsiveness, the browser initially displays an electronic document without a background image so that the electronic document is initially displayed more quickly. The browser also prioritizes downloading of embedded images of the document by their incorporation in the currently visible portion of the electronic document. Further, the browser dynamically creates additional connections for retrieving resources incorporated into the electronic document from the remote computer network.
  • 5889522 - New varieties of child window controls are provided as system resources that application programs may exploit. The preferred embodiment of the present invention provides a dynamic link library (DLL) for implementing the new child window controls as part of an operating system. The new child window controls include a header bar control for providing header bars in application programs. The new controls also include a hot key control that allows a user to view and edit hot key combinations. The new controls further include a tab control for establishing tabs that differentiate amongst pages in user interfaces provided by application programs. An image list data type is defined and functions are provided for manipulating the image list data type. Image lists include multiple like-sized images that are stored efficiently in a single bitmap.
  • 6339780 - Described herein is a portable computer having a limited display area. An Internet or other hypermedia browser executes on the portable computer to load and display content in a content viewing area. During times when the browser is loading content, the browser displays a temporary, animated graphic element over the content viewing area. The graphic element is removed after the content is loaded, allowing unobstructed viewing of the loaded content.
  • 6891551 - A computer system and method for highlighting and selecting elements of electronic documents is disclosed. In one embodiment, a selection area identifies an initial selection of data, and one or more selection handles appear on the selection area to allow dynamic resizing of the selection area to select a larger or smaller portion of data or number of items.
  • 6957233 - A system and method for capturing annotations for a non-modifiable document is disclosed. Once it is determined that an annotation is to be created, the system determines the file position of the selected object. The file position of the selected object is stored along with the created annotation in another file or a non-read only portion of a file storing the document. Using the file position, the annotation may be properly identified with the selected object without modifying the non-modifiable document.

For patent 5778372 alone Barnes & Noble offers up an amazing 172 examples of prior art, going all the way back to the Spyglass Mosaic web browser that Internet Explorer was based on. It seems that Barnes & Noble is determined to make Microsoft's patents seem 'trivial' and 'insignificant' and that the Redmond giant is using them to damage Android growth.

The document goes on for pages and pages, listing all sorts of prior art for each of the alleged patent violations. It's actually quite a read, and for me digs up names and terms form a time long forgotten. It's a very entertaining read.

Groklaw doesn't pull its punches:

But, as you may have noticed, the whole patent system is tilted toward plaintiffs, even when all they have in their cynical hands are stupid patents, and that is precisely what is so wrong about the patent system that a very heroic Barnes & Noble is trying to survive. Like going down a white river. Some people love doing that, of course, riding the rapids. They call them litigators, and Barnes & Noble has some of the best in the country guiding them.

Barnes & Noble has also complaining to the US Department of Justice about what it claims is Microsoft's misuse of patents:

"In addition to the oppressive restrictions and prohibitions in Microsoft's proposed licensing agreement, Microsoft is also demanding exorbitant licensing fees for the use of Android. Indeed, shortly after Microsoft sent Barnes & Noble a proposed licensing agreement on or about January 6, 2011, Microsoft confirmed to Barnes & Noble that it was demanding licensing fees [redacted] for each NookTM and [redacted] for each Nook ColorTM. It is Barnes & Noble's understanding that these licensing fees that Microsoft demands for the use of the Android are the same, or higher, than the licensing fees that Microsoft charges for its own Windows Phone 7--despite the fact that Microsoft only claims ownership of only trivial and non-essential design elements in Android-based devices, as opposed to an entire operating system."

This looks like it could be very interesting.


Topic: Microsoft

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  • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art one of those patents actually for a loading gif?
    • And these are what USD8 billion a year buys

      Aerowind each one of the patents is unoriginal and pathetic. An embarrassing result for hundreds of billions of dollars in claimed R&D expenditure by this company.

      Adrian thanks for the post. No clearer example of the corporate abuse of the patent system and of the value of claimed IP that these companies demand need protection.

      Consumers again the loser.
      Richard Flude
      • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

        @Richard Flude What's even worse is that for using these questionable, trivial patents Microsoft wants to charge the Android user the same price as it charges for a full WP7 license! Of course, in that case the user might as well go with WP7, which is the whole point of the exercise.

        Of course, Microsoft also tries to force the challenged to sign an NDA before they'll even tell them what patents they believe they are infringing, which is also crazy and done to avoid something just like what B&N is doing now. It also prevents people from designing around the infringed patents.

        Now maybe all those who didn't understand the hubbub over secure boot might want to reflect a bit about ulterior motives....
    • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art


      Wp7 has failed so badly start suing....
    • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

      If Microsoft is patenting things that have been done for years then is that not theft of public property. I've never thought about the situation in this way before, but they are charging for patents they did not invent. I'm not even talking about infringement here because they are charging actual money for ideas that are in fact should be public property.
      • It'd be more fun than Peterborough United beating Manchester United 9-0

        And in the FA Cup no less.

        Of course you'd have to endure the pitiful whining of some of zdnet's bloggers and all too many of their "regulars" (who are pretty obvious to pick) who would readily defend a Microsoft position that there would be positive health benefits for the world if penguins and people from Cupertino(?) were dosed regularly with cyanide.
      • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art


        That's actually fraud and misrepresentation - criminal charges.
        Alan Smithie
  • Before it's over

    it's going to go to the mat on DOJ antitrust for:


    Unlawful misuse of authority/office constitutes extortion and that's in the RICO Act.
    They have gotten away with it for several years by cloaking everything in an NDA.

    Only now, the cat is out of the bag--and this sets the stage for other aggrieved parties to come forward and offer their testimony on similar/same treatment without risk of breaching contract on NDA.

    Why? Because you can't enforce NDAs for criminal activity, that's why.

    It'll happen. Promise.
    Dietrich T. Schmitz *Your
    • You also gotta wonder about the other patents......

      @Dietrich T. Schmitz * Your Linux Advocate

      that Microsoft claims the linux infringes on. If these are typical, then it is understandable why Microsoft is using the NDA's as a smoke screen for patents that should prove unenforceable.

      Break out the popcorn....
      linux for me
    • Extortion???

      @Dietrich T. Schmitz * Your Linux Advocate

      An NDA is the life blood of ANY corporation who has ANY kind of IP, period. Do you really think it is unreasonable to have someone sign an NDA when they ask you "I'd like to review your patent information regarding the intellectual property you have"?

      No one is ever FORCED to sign an NDA, but if you do not, don't expect to get detailed information on any IP related material for free.

      Then again, given your signature, you probably believe everyone should spend $60K on a CS degree to write free software for others :-)
      • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

        @omdguy It is unreasonable when someone says to you, "Hi, I think you've stolen my stuff."
        "What stuff."
        "I'd tell you, but then I'd have to kill you. No, seriously, I would. I'll only tell you what I think you stole if you promise not to tell anyone else what it is I think you stole first."

        This isn't about Microsoft giving B&N IP - this is about Microsoft telling B&N they're infringing on Microsoft's patents but refusing to tell B&N which patents unless they sign an NDA prohibiting them from telling anyone else what patents Microsoft cited. THAT'S part of the extortion here.
      • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

        @omdguy 1) NDAs are normally created and signed after all negotiations are complete.
        2) MS wanted the NDA signed before revealing the publicly available Patent info, not any detailed IP info.
        3) After B&N forced the issue, MS changed the patents in question, then requested a NDA for the updated patents.

        Shady, very shady.
      • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

        @omdguy That is hilarious! $60k to write free software for others!
      • Patents are freely are you talking about?

        @omdguy Patent's are available to the public. There's no need to cover them by NDAs. You can request copies of all these patents if you like. Trade secrets on the other hand are different. The coca-cola recipe is a trade secret. Heinz Ketchup is a trade secret. If you don't want someone to have the exact process and formulation of something, the best way to do that is to keep it secret. These NDAs are to keep the accused mum about the ridiculousness of the claims. 5 Pages to cover all of Android's infringements? Are they serious? It's a shake down.
    • That's not true.

      @Dietrich T. Schmitz * Your Linux Advocate
      Google is a [b]big[/b] advocate of NDA's, so are you saying that anyone who uses them is doing something wrong?
      William Farrell
      • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

        @William Farrell
        How you got that out of what he said boggles the mind. If you want to stump for your "team" fine but at least make some sense.
        Nathan A Smith
    • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

      @Dietrich T. Schmitz * Your Linux Advocate

      Wp7 has failed start suing
    • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

      @Dietrich T. Schmitz * Your Linux Advocate

      Right on the mark! The DOJ is likely going to be all over this. This is just the kind of red meat the bureaucrats in the Justice Department live for. And if they don't, the EU will come down on it hard and fast. I think we are finally going to see decisive action on MS after all these years. And that is only the beginning. There are just so many directions this can go legally and none of them bode well for MS. Groklaw was fighting SCO back when many who should have known better were supporting SCO. SCO is now so bankrupt it is pathetic. Once again Groklaw is reborn with a new reason to live. MS will never be bankrupt, but before this is over the odds are that they will be just as busted as SCO. The whole thing is just too obvious. They have pushed their agenda too far and finally some brave enterprise is calling their bluff.
      George Mitchell
  • Looking at the prior art, these patents are fried.

    I remember using the said browsers, and they did have backgrounds etc. So how on earth these got patented is amazing.

    Why Microsoft would waste money publishing patents for stuff with prior art is also amazing. This isn't innovation, it clearly isn't innovation (to patent stuff that already exists). And _it isn't right_.

    I sense a big drop in patent income for microsoft. Someone should do the same against Apple where it's patents are ridiculous.
    • RE: Barnes & Noble challenges Microsoft's infringement claims with 43-pages of prior art

      @stevey_d How these got patented? I came across a patent a few months ago while looking for something that is literally a patent for modifying a V8 engine to run without gas, the power supplied by "spacetime". Yes, it's a perpetual-motion V8 and even makes it quite clear in the abstract that it runs the V8 without gasoline courtesy of magnets and spacetime. Apparently ANYTHING gets a rubber stamp from the PTO these days. The GIF format fell out of favor because a patent was asserted against it for a compression algorithm - thing is, the patent is really just a rearranged version of an existing algorithm (that I believe had already been patented)! No one ever challenged it, though, so everyone was forced to either pay up for decoding GIF or move to a different format until the duplicate patent ran out. There are lots of things like this going on with patents.