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

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.

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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