Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

Summary: Barnes & Noble has filed its response to Microsoft's claim from earlier this year that the Android-based Nook e-reader violates Microsoft patents -- complete with allegations around Microsoft's tactics around patent-enforcement tactics and royalty-charging plans.

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Barnes & Noble has filed its response to Microsoft's claim from earlier this year that the Android-based Nook e-reader violates Microsoft patents -- complete with allegations around Microsoft's tactics around patent-enforcement tactics and royalty-charging plans.

Microsoft sued Barnes & Noble, Foxconn and Inventec (the companies manufacturing the Nook) in March, claiming the Nook infringed on a handful of Microsoft's patents. A few days ago, the U.S. International Trade Commission began investigating Microsoft's complaint. (Patent-watcher Florian Mueller is expecting that the federal lawsuit is stayed for the duration of the corresponding ITC investigation.)

The Barnes & Noble response to Microsoft's complaint, dated April 25, makes some interesting counter-arguments regarding Microsoft's plans to combat Android, going so far as to bring antitrust allegations involving Nokia, Microsoft's newest mobile phone partner, into it.

"On information and belief, as part of Microsoft’s recently announced agreement  with Nokia to replace Nokia’s Symbian operating system with Microsoft’s own mobile device operating system, Microsoft and Nokia discussed and apparently agreed upon a strategy for coordinated offensive use of their patents," says the B&N filing. "This type of horizontal agreement between holders of significant patent portfolios is per se illegal under the antitrust laws, threatens competition for mobile device operating systems and is further evidence of Microsoft’s efforts to dominate and control Android and other open source operating systems."

"Microsoft did not invent, research, develop, or make available to the public mobile devices employing the Android Operating System and other open source operating systems, but nevertheless seeks to dominate something it did not invent," B&N's complaint says.

As I've blogged before, to me, there's little doubt that Microsoft is using its patents as a way to try to fight Android's growing dominance in the mobile space. Microsoft sued Motorola last fall over alleged infringement of Motorola’s Android smartphones on Microsoft’s patents. And HTC paid an undisclosed amount to Microsoft in 2010 to head off potential Android-based patent problems.

I found some of the details about how Microsoft approached B&N interesting.  According to the complaint, upon telling B&N officials that the Nook infringed six patents that Microsoft claimed to own, Microsoft officials said they'd share details only if B&N officials signed a non-disclosure agreement. B&N refused to sign an NDA, claiming the patents were public and the infringement allegations were on a public product. As a result, according to B&N, Microsoft officials would only discuss the alleged infringements "on a high-level basis."

"Microsoft nevertheless maintained that it possessed patents sufficient to dominate and entirely preclude the use of the Android Operating System by the Nook," according to the complaint. "Microsoft demanded an exorbitant royalty (on a per device basis) for a license to its patent portfolio for the Nook device and at the end of the meeting Microsoft stated that it would demand an even higher per device royalty for any device that acted 'more like a computer' as opposed to an eReader."

B&N's complaint says that Microsoft was seeking a more than double per device royalty for the color version of the Nook -- an amount B&N officials believed be "higher than what Microsoft charges for a license to its entire operating system designed for mobile devices, Windows Phone 7."

B&N is denying it has infringed the patents highlighted by Microsoft, and is calling into question whether some of the patents in question should be considered operating-system-related at all.

The full B&N response is worth a read for those interested in the never-ending Microsoft vs. Linux wars.

Topics: Legal, Hardware, Microsoft

About

Mary Jo has covered the tech industry for 30 years for a variety of publications and Web sites, and is a frequent guest on radio, TV and podcasts, speaking about all things Microsoft-related. She is the author of Microsoft 2.0: How Microsoft plans to stay relevant in the post-Gates era (John Wiley & Sons, 2008).

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  • Good for MS. They have shareholders who've invested in their R&D and owe it

    to them to not let b&n or anyone else rip them off by stealing their ip. b&n should be ashamed of themselves and they should fire everyone involved in the decision to use android when they knew ahead of time that it contained ip stolen from multiple other companies including ms. I hope the other companies sue them too and they have to pull the product until they legally license what they right now have no right to sell.
    Johnny Vegas
    • Message has been deleted.

      Return_of_the_jedi
    • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

      @Johnny Vegas
      Being that Microsoft is the worst offender of this, I often wonder why fanboys give them a pass? If Microsoft were to fulfill your dreams and become the only supplier of Software, and OSes, they could charge a monthly fee just to access your work. Is that really the world you wish to live in?
      Rick_K
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infr

        @Rick_K
        What are you talking about? It's Google fault it didn't provide patent protection and everybody else, but Google, is in trouble.

        Being free and open source is not excuse for violating patents.
        illegaloperation
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @day2die
        Just because I do not pray to Redmond 5 times a day, does not make what I posted any less true. Microsoft is suing OEMs for using Android. Microsoft does not want to directly sue Google. They want to charge a tax on all devices that use an OS, regardless of who writes the underlying OS.
        Rick_K
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @Rick_K It is apparently s a peculiarity of patent law that it is the use of the infringing method or apparatus that constitutes the infringement, so it is the manufacturers (and users) of Android-based devices that are the infringers. Note that the suite Google just lost in a jury trial was for Google's use of Linux systems in its operations, not for any of its distribution or contribution of Linux software. The other defendants in that particular suit are all large content organizations (amazon.com, Yahoo!, Facebook) that use Linux in their operations.

        Generally in regard to technology patents, the producer holds its customers harmless in any case of infringement and defends the action. It is part of the arrangement. That isn't available for Linux and for Android. No one is providing indemnification in that way. If Google were doing that for Android, they would have automatically stepped in on behalf of the defendants.
        orcmid
      • Not just Microsoft...

        @Rick_K
        Why are Apple suing HTC instead of Google?
        dazzlingd
      • re:RE: Barnes & Noble says Microsoft is attacking Android with its patent-i

        @orcmid<br><br><i>"That isn't available for Linux .... <strong>No one</strong> is providing indemnification ..."</i><br><br>Tha's a false fact.<br><br>If you want Linux indemnification, use <a href="http://www.novell.com/linux/microsoft/" target="_blank">M$'s approved Linux</a> (Novell Suse).
        Return_of_the_jedi
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @orcmid
        The lawsuit you refer to is an excellent example why this racketeering, plain and simple. The technique in question exists in textbooks from 1973 and was use as early as 1967. The patent is from 1997.
        Actually I am sure Microsoft are violating this patent as well, I would be astonished if they do not use this method in lots of places.
        I think MS in general have always tried to bully companies who can afford to pay and stand more to loose from any uncertainty. They never went after Canonical, Red Hat and Google who have a core business around Linux and my guess is they never will, because they will fight.
        BTW, RedHat is suing Blackrock to invalidate the aforementioned patent.
        kirovs@...
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @day2die
        And you know they are violating patents how? Accusations in US legal system are not equal of a conviction. That used to be USSR way of doing business.
        kirovs@...
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @Rick_K Don't hate the player. Hate the game.
        jessiethe3rd
    • Message has been deleted.

      Linux Geek
      • Message has been deleted.

        John Zern
    • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

      @Johnny Vegas

      Microsoft has a job in their PR department waiting for you. No facts necessary just the ability to bully other companies with expensive litigation by having a large supply of cash.
      DonRupertBitByte
    • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

      MSFT is apparently getting desperate since their stock has been stagnant since 1998. Yes, look at the chart, it's at the same price since late 1998. If you want to support a company that cannot innovate any longer, then MSFT is your company. It's about time somebody stands up to this like B&N did.
      Chris_Clay
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @apexwm

        "it's at the same price since late 1998"

        I sure wish my pension plan had performed that well!
        njoho
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        @apexwm : I think you're confusing things... stock price and innovation aren't directly.
        strangis
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infringement claims

        ": I think you're confusing things... stock price and innovation aren't directly"

        Ask Apple. Great innovator and they are what, the 2nd most valuable company in the USA?
        itguy08
      • RE: Barnes & Noble says Microsoft is attacking Android with its patent-infr

        @apexwm Adjusted for inflation, it is actually down.
        lestroud
      • Apple

        @ itguy08<br><br>Apple only entered the top 50 firms in terms of annual patents awarded in the US in 2010. IBM have been the top firm for nearly two decades now, and Microsoft have been steadily climbing the rankings for years. They're currently in third place, but if trends continue, they'll move into second place within a few years, and perhaps eventually overtake IBM.<br><br>The precise numbers for 2010 are 5896 patents awarded to IBM, 3094 patents awarded to Microsoft and 563 awarded to Apple. If Apple are so innovative, and apparently keen to sue firms who violate their patents, why are they awarded so few compared with IBM or Microsoft (or Samsung for that matter)?
        WilErz