Barnes & Noble is forced to fight this one from a position of relative weakness because it does not have its own patent portfolio from which to mount defensive counterclaims. The patent misuse theory works insofar as it goes, assuming it can be proved, but the evidence presented is sketchy and only time will tell on that one. This case, though, does illustrate that Android remains the waif child of the mobile device industry, the one who gets periodic beatings, whether from Apple, Oracle, Microsoft, or any other entrenched proprietary player, with software patents often serving as the whip. Meanwhile, Google is frantically scrambling to buy up its own patent portfolios and is filing its own patents like mad to position for the future. A fascinating spectacle, to say the least, and Groklaw once again gives us a front-row view of some of the goings on.
Anyone have any real insight on what chance B&N has? Reading this they seem to be asking for 1 - the entire thing to be thrown out (including the patents) and failing this 2 - a trial by jury.
How likely is #1 (i can only assume _everyone_ asks for this..)? Are cases like this normally heard by a jury? Are B&N's claims actually solid? Is there any chance of other companies supporting B&N?
From the layman free-software nerd point of view, this appears to be exactly what is happening in a number of situations. This is a way to assign a cost to your competitors who are giving away solutions for free.
1) Microsoft approaches companies using Linux. They claim they have patents that Linux infringes. Either pay Microsoft's licensing fee (Amazon) or get sued (TomTom). Now Linux isn't free. This has been going on for years, long before Android.
2) MPEG-LA looks to be considering the same path with the WebM patent-pool they are forming. I assume they will start using this same pitch on smaller companies once WebM starts being used more.
3) Both Apple and Microsoft are going after Android in this manner.
It is a brilliant strategy that exploits shortcomings of the patent system. You get paid for allowing people to use your competitors' free solutions or, at the very least, the free solutions end up having legal fees associated with them. The only downside is negative publicity among certain groups of customers.
I love reading software patents.
From the article:
32. Of the patents Microsoft threatened Barnes & Noble with in the past, Microsoft has only sued Microsoft on the ’780 patent. Barnes & Noble denies that the accused NookTM and Nook ColorTM devices infringe any valid, enforceable claim of the ’780 patent. The ’780 patent appears to cover nothing more than placing a loading status icon in the content viewing area of a browser. In that patent, Microsoft concedes that loading status icons and content viewing areas of a browser were both known in the prior art. The prior art placed the loading status icon outside of the viewing area, but it is nothing short of obvious to place it in the content viewing area (since there are only two locations for such an icon—either in or out of the content viewing area).
BN seems to want to make this something it isn't. It's a standard patent infringement suit, with licensing opportunity. BN's motive speculations don't add anything as using patents against competitors is common.
The whole Nokia thread is odd. They're not a party in any way of this lawsuit. And furthermore IP cross licensing amoung partners is extremely common, if not the flat out norm.
BN should stick with trying to invalidate the patents, and not conspiracy theories.
Just because it's the norm doesn't mean it's right. There are plenty of things that companies used to do that are now illegal because they ensure monopolies or otherwise disrupt the economy.
I wouldn't be surprised to see that patent cross-licensing like this turns out to be one of those things in the future.
I have to agree that it would be better to invalidate the patents, but sometimes you have to settle for what you can get.
And hopefully it'll be another step towards patent reform.
B&N claim that Microsoft is asserting control over Android via (tangential) patents which, when you add Nokia, gives them control over the Number 1 & 2 smartphone OSes, plus Windows Mobile which is about 2/3rds of the global market.
So under this theory either Microsoft is right, and deserves payment for the vital IP it has over Android and therefore controls large segments of the market, or Microsoft is wrong, and has no ownership and control but in that case deserves no money.
>B&N claim that Microsoft is asserting control over Android via (tangential) patents which, when you add Nokia, gives them control over the Number 1 & 2 smartphone OSes, plus Windows Mobile which is about 2/3rds of the global market.
That doesn't make any sense whatsoever. Apple asserting it's patents against HTC, Samsung and Motorola will give them control over 75% of the US market, so it's now an anti-trust concern? I think that argument is a stretch.
Intent is important. Microsoft is using those patents to disrupt an ecosystem it deems threatening to its need to (illegally) leverage its desktop OS monopoly into the mobile space in order to gain market share there. Android is a threat to Microsoft's desktop market because it furthers the trend away from PCs and towards mobile devices.
Microsoft is also using its "war chest" to threaten less well financed players with long and expensive legal battles, the costs of which it can cover rather easily.
Oh yes, I am criticizing Microsoft. Let the karma burn.
That's a stretch. Especially since the largest players over to past decade haven't been attacked in this way by MS... Apple, Palm, RIM.
In the tablet space even Android is a niche player compared to the iPad. Additionally until recently the Nook was pretty much just an eReader, with the most popular software client running on Windows.
My point is this is a stretch, like any good conspiracy theory.
The fact Android is a niche player in the current market is more or less irrelevant. What's relevant is the desktop market will become less and less important because of a shift towards server-based computing and mobile (or thin) clients.
This threatens the survival of Microsoft like no previous player (like you mentioned, Apple, Palm and RIM) did and that alone is enough to explain Microsoft's lack of action at the time. Mobile devices and easy connectivity signal the end of the only market Microsoft has been able to dominate completely.
>Mobile devices and easy connectivity signal the end of the only market Microsoft has been able to dominate completely.
Mobile devices signal the end of PC? I see you have bought this Post-PC bs hook, line and sinker. PCs are going to be important for quite a while, I don't see many people replacing their PCs with tablets or phones, they seem to be just using it as an additional device.
Like trucks remain important today. We will have a lot of other information processing/retrieval devices around us. Up to now, we had mostly one type. Shortly, we'll have a far more diverse ecosystem.
> I don't see many people replacing their PCs with tablets or phones
Don't look to PCs if you want to see people replacing them. Look at people who prefer to do their scheduling or e-mail on phones or their reading on tablets.
All of those companies have a large portfolio of patents. They haven't been attacked because they all have dirt on each other. Now that MS and Nokia have a new cross-licensing agreement, and think about how large the portfolio is of a combined MS+Nokia, they are starting to leverage it in very bad ways.
You should read it again. I think MS has gone out of there way to reinvent themselves as not that old Microsoft. But sometimes a maneating tiger really is a maneating tiger.
But licensing or suing isn't leveraging their current monopoly. They aren't blocking Android from syncing on Windows. They're not blocking the Nook client from working on Windows. They're not bundling WP with Windows.
They're suing over patents. Last I checked even monopolies could sue over patent infringement.
If BN asserted they were actually using their monopoly power then that would be one thing. But simply asserting that a monopoly in one space is being scrappy in another doesn't meet the bar.
> But licensing or suing isn't leveraging their current monopoly
Using the income from monopoly A for threatening to drag players in market B (that's about to become more relevant than monopoly A) into legal wars that only the plaintiff can afford is... well... shady.
> They're suing over patents. Last I checked even monopolies could sue over patent infringement.
Unless they are using those patents to prevent competitors from competing with them. If you consider the mobile ecosystem as competition to the desktop ecosystem, you can argue they are leveraging a monopoly (because the monopolist in segment A can afford a legal battle nobody in segment B can) to prevent it from being rendered worthless by a segment they can't monopolize.
>its need to (illegally) leverage its desktop OS monopoly into the mobile space in order to gain market share there
Huh, how can that happen? Is MS forcing PC OEMs to bundle Windows Phones with their PCs?
If intent is important, then all of Apple's lawsuits against Android will be thrown out, since Apple can be construed as trying to gain a monopoly in the mobile phone market.
>Oh yes, I am criticizing Microsoft. Let the karma burn.
> Is MS forcing PC OEMs to bundle Windows Phones with their PCs?
AFAIK (everything under NDAs) HTC's deal to make WP7 phones along their Android ones reduced the cost of their settlement. Dell selling WP7 phones has, probably, some impact on their OEM license costs.
Oh.. You didn't see the aggressive downvoting I got right after posting the comment. It seems Microsoft fans concentrate on the East coast of the US while Microsoft hostile crowd favors the West coast.
Either that or their astroturfing crowd is very quick in finding Microsoft-hostile comments and that creates the downward trend before the general crowd overwhelms them.
It's important to note here that a big piece of Barnes & Noble's argument is bad faith on the part of Microsoft.
They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7.
In layman's terms, it's like if I owned a patent on a keyboard and tried to keep you from making a computer to compete with mine by charging a licensing fee for my keyboard patent that was more than the cost of my entire computer. That's what Barnes and Noble is accusing Microsoft of doing.
They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7.
But is that illegal? AFAIK MS is under no obligation to license these patents at all, much less under RAND.
And again, MS has no monopoly on WP7, so a comparison to WP7 pricing has nothing to do with their monopoly status on the desktop.
In many regards MS is doing this exactly right. They are being aggressive in the mobile space, but they are NOT using their desktop market position to accelerate it. They're not blocking bn.com from IE. They're not bunding WP7 with Windows 7. They're not saying that BN must license these patents if they want to sell Windows 7 as a retailer.
To put it another, imagine WP7 was its own company. Would they be doing anything differently? I don't think so. I think they'd still be scrappy trying to leverage their assets in any way to make money and slow down competitors. They aren't using the desktop/server OS monopolies at all for any quid pro quo. What they're doing today is what they'd be able to do as a standalone company. This implies that they're not using their monopoly position as leverage.
You're getting hot and bothered about legal arguments that just aren't there. Other than alleging antitrust implications by Nokia and Microsoft cross-licensing patents from (between them) a dominant position in the mobile phone industry, there aren't any legal arguments about monopolies in this filing.
98% of this filing is about misapplication of patent law and bad patents. This has nothing to do with anti-trust other than one line in one paragraph in a 70-paragraph defense and counterclaim section.
Well I'd agree with you if not for the fact that Groklaw made anti-trust the central thesis of their blog entry, which is the article this thread is referring to.
Here's Groklaw's concluding sentence:
"You know how for years I've told you that I expected that one day Microsoft's anti-Linux patent threats would be an antitrust matter? That day has come, at last, and while others have apparently caved to Microsoft, Barnes & Noble had the wisdom to refuse to sign an NDA, and so it is free to speak"
You may want to let them know that antitrust isn't really the crux here.
Sadly, Groklaw seems to have turned into a cesspool of Microsoft haters. Can't really hope for any impartiality when it comes to reporting on MS. It's doubly sad because it's such a good resource otherwise.
I had done a brief look at these patents in a previous thread. I do find some of them pretty compelling, if they do survive invalidation attempts.
Ironically, if MS loses their current case in the Supreme Court, the bar for B&N will be extremely high (the current standard is clear and convincing).
