ITC attorney says Barnes & Noble shouldn't be found in violation of Microsoft patents: Report

Barnes & Noble, maker of the Android-based Nook, shouldn't be found in violation of Microsoft patents, an attorney with the ITC has said before hearings in the matter commence.
Written by Mary Jo Foley, Senior Contributing Editor

An attorney with the U.S. International Trade Commission is recommending that the ITC rule that Barnes & Noble's Android-based Nook isn't violating Microsoft patents.

That's according to a February 6 story by Bloomberg, citing an interview with a staff attorney with the ITC.

Microsoft sued Barnes & Noble, Foxconn and Inventec (the companies manufacturing the Nook) in March 2011, claiming the Android-based Nook infringed on a handful of Microsoft’s patents. Barnes & Noble countersued. The ITC began investigating the case last year. Barnes & Noble's claims that Microsoft was attempting to misuse its patents to undermine its competition were thrown out in late January, but whether or not B&N is in violation of Microsoft patents still has yet to be determined by the ITC judge.

In spite of today's recommendation, Barnes & Noble is hardly out of the woods. The recommendation comes before the hearings even have commenced. And, as Bloomberg notes, the staff is solely a third party in this case, meaning there's no requirement that the judge overseeing the case follow the recommendation.

As Florian Mueller, author of the FOSS patents blog said in an email to me, there still needs to be an initial determination by an Administrative Law Judge in the case. This determination is subject to approval or modification by a six-member ITC Commission. And the Commission's rulings always can be appealed to the Federal Circuit Court. The Judge in the Microsoft vs. Barnes & Noble case currently is scheduled to release his findings in late April. A final ruling will likely come several months later.

Mueller -- who is working on a paid FRAND patent study for Microsoft -- also noted that in the ITC investigation of Apple vs. HTC, the staff also initially recommended a finding of no violation. However, the judge in that case later identified two violations, one of which was confirmed by the Commission in its ruling. Apple is currently appealing that one in order to broaden the technical scope of the import ban, Mueller said.

"Generally, patent infringement claims against smartphones and tablet computers have an incredibly high drop-out rate at the ITC, regardless of which patent holder brought a complaint," Mueller said.

After some winnowing, there are three Microsoft patents that are currently under consideration in the Microsoft vs. Barnes & Noble case. However, Microsoft does have the option of asserting other patents beyond these three if there's no settlement between the pair, Mueller said.

If the ITC does rule in Microsoft's favor, there could be a ban on imports of Nook readers made outside the U.S.

I've asked Microsoft for comment on today's latest revelations in the Android patent wars. If I hear back, I'll update this post.

Update: Here's Microsoft statement on the case and on today's developments in particular, via a spokesperson:

"This was a preliminary argument by the Office of Unfair Import Investigations ('OUII') staff attorney, which was filed before the presentation of the evidence at the hearing has occurred. The OUII staff may change its position after the hearing.  Additionally, the administrative law judge will hear the evidence and arguments at the hearing and will come to his own conclusion.

“Microsoft is committed to protecting its intellectual property by licensing it to others. The Android based Nook devices infringe Microsoft patents. Barnes & Noble has refused to license Microsoft’s IP on commercially acceptable terms, a decision which has left us with no choice but to file this action in the ITC.”

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