B&N Responds To Microsoft's Android Suit

eldavojohn writes "You're probably familiar with Microsoft's long running assault on Android but, as noticed by Groklaw, Barnes and Noble has fired back saying, 'Microsoft has asserted patents that extend only to arbitrary, outmoded, or non-essential design features, but uses these patents to demand that every manufacturer of an Android-based mobile device take a license from Microsoft and pay exorbitant licensing fees or face protracted and expensive patent infringement litigation.' Barnes and Noble goes on to assert that Microsoft violates '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.' The PDF of the filing from two days ago is rife with accusations including, 'Microsoft intends to utilize its patents to control the activities of and extract fees from the designers, developers, and manufacturers of devices, including tablets, eReaders, and other mobile devices, that employ the Android Operating System.' and 'Microsoft has falsely and without justification asserted that its patents somehow provide it with the right to prohibit device manufacturers from employing new versions of the Android Operating System, or third party software.' Barnes and Noble does not mince words when explaining Microsoft's FUD campaign to both the public and developers in its attempts to suppress Android. It's good to see PJ still digging through massive court briefs to bring us the details on IP court battles."

Comments

Ob

[Hognoxious]

I hope MS don't patent getting a fi%&
*^n o c a r r i er

Re:Ob

[Anonymous Coward]

1. What is a fi-percent-and?
2. How did you submit this with no "carrier"? And
3. I think there is a bug in the encoding, causing messages to be spaced out,.

Re:Ob

[Anonymous Coward]

No carrier is the message you get if you're typing in commands in cmd.exe and your adsl disconnects. The joke is that the poster was trying to post some secret and he is implying that Microsoft cut his line.

Re:Ob

[Anonymous Coward]

No carrier is the message you get if you're typing in commands in cmd.exe and your adsl disconnects

I lol'd

Re:Ob

[h4rr4r]

No carrier is the message you get if you're typing in commands in cmd.exe and your adsl disconnects.

GET OFF MY LAWN!

Patents

[Anonymous Coward]

When you can't come up with a better product, it's time to call in the lawyers.

Re:Patents

[miffo.swe]

In Microsofts case i imagine the problem lies more with their reputation than their product. WP7 is behind the times, lacks many basic functions people take for granted in a smartphone and are just a "me too" product.

But, their biggest problem is that people regard Microsoft as a backwards, boring and utterly crappy company unable to release good products. Anyone who ever used a Windows Mobile Phone shy away from WP7 like a beaten dog from a stick. Anyone who has used Windows more or less expect WP7 being about as interesting as Windows 7 or Vista. The brand Microsoft is tarnished to the point almost no marketing in the world can save it.

Re:Patents

[peragrin]

The Irony of it is that MSFT tarnished their brand by excessive marketing, and pushing into area's they really couldn't support. Combined with bad management decisions, and stupid internal restrictions means that Windows as a whole suffered.

MSFT came out with a tablet edition of the OS in 2002, but 9 years later still don't have a tablet edition of any other software they deploy.

When apple developed the ipad, one of the first set of included apps was a slightly dumbed down, but functional copy of their software.

Re:Patents

[neokushan]

Before I got my android phone, A windows mobile device was the best phone I'd ever had. This was back in 2004, mind you, when people were still impressed by colour screens and "polyphonic ringtones", while I was able to watch films and play Doom.

Re:Patents

[somersault]

It's true they were the most functional devices around for a while, I liked my HTC/WinMo combination as the best available choice for a while. I didn't want an iPhone, but I'm sure glad that it forced phone interface developers to get a grip. I now have an Android phone and tablet, they're definitely the nicest combination of interface and functionality right now.

Re:Patents

[salesgeek]

Back in 2004, I got a really cool Motion Computing tablet. It was 2x the computer an iPad was but was fatally flawed.

It was limited in utility because only the Journal software that came with it, MS One Note and a form CRUD application I forgot the name of really used the tablet features. Had MS truly pen/touch enabled Windows from top top bottom (i.e. larger buttons, smarter click regions, better pen integration to windows GUI controls etc...), their model for tablet computing would have won out years ago. I seem to remember reading a story about how there was some kind of fight between departments at MS where the pen computing group couldn't get the people that did office and Windows to add more tablet functionality...

Re:Patents

[miknix]

Are you kidding? I have a HTC Wizard phone (TI OMAP-850) which is full of cool stuff: IRDA, bluetooth, 3G/EDGE, WiFi, 1.2M camera, qwerty keyboard, etc.. I know these are not impressive specs right now but they were 4 or 5 years ago. If you asked me the question: -what can you do with it? I would answer NOTHING!

It was not good as phone, that is, the user interface was not designed for it. I was much much faster taking of my dumb phone out from my pocket and write a text message using t9 than to go through all the menus in windows mobile, launch the messaging program, slide the qwerty keyboard, wait for the screen to rotate and finally write the message. We can argue the hardware was slow, but the truth is that Microsoft made the BIG error of having the software and hardware division separated by a huge Berlin wall. I disassembled the firmware and ended up realizing that it was compiled for the previous generation of ARM CPU, the Wizard's CPU is a ARMv5 and windows mobile was built for generic ARMv4!!! They (HTC probably) could have made the software adequate for the hardware they were selling but they didn't care. Even Linux with a small desktop manager runs faster on my HTC Wizard than the original firmware!!

It was not good as a internet device, the integrated Internet Explorer was slow, and difficult to use with a pen, a real pain in the ass. I preferred to wait and see some article at home instead of accessing it "right away" through the phone using GPRS.

Activesync was a horrible thing, you cannot imagine how much contacts I lost during a sync. Syncing through exchange was also a nightmare, I can never forget this message: "there was a change in the server, all the data in your phone needs to be deleted and synced again". WTF???

The integrated windows media player was another design stupidity, believe it or not, I had to use VLC (a port of it) because windows media player wasted my battery in less then one hour.

It had an integrated "office" suite which, truth to be told, was completely useless - at least for me.

The only thing I found useful on that phone was using third party instant messaging programs which actually worked well (much better than msn messenger). Other thing that worked well was playing games which actually used the pen interface quite well.

The device at the time cost 600 euros, I paid less than half for it in a ebay bid. Still, I feel it was one of the biggest scams of my life, I just still keep it because it runs Linux and is useful for robotics applications. I hope you feel through my wording how pissed off I still am!

Re:Patents

[Bert64]

Windows phone 7 doesn't really seem to fit anywhere...

To the general public, the windows brand is associated with desktop and laptop computers...
I spoke to someone who is entirely non technical, who brought up a "windows phone" they had seen advertised on tv, and then stated they would never consider buying one because "why would i want windows on a phone?"

They believed that a windows phone would be plagued with malware and blue screens of death, basically bringing all the problems from the pc to their mobile. Now while this is an incorrect assumption, that's the assumption people make when they see the brand windows.

These same people are the ones keeping windows alive on the desktop, because they believe it is an inherent part of desktop computing and often either aren't aware of any alternatives existing at all, or are of the belief that linux is for geeks and macos is extremely expensive. For phones on the other hand, these people are already familiar with existing mobile platforms.

To people who have used earlier versions of windows mobile, the brand has often left a bad taste... Earlier versions were clunky and unreliable, and that's a major disincentive to try the current version... I know several people who had windows mobile 6.x devices, and all of them hated it and have since moved to other non microsoft phones.

To people who have decent knowledge of the smartphone market, windows phone 7 is woefully behind all the other offerings and not really worth considering at this point...

And to geeks, windows phone 7 isn't unix, isn't open, and is from a company known for making poor software.

Windows, the very name gives it away, is a desktop gui system... The interface is an extremely poor fit for use with anything other than a mouse and keyboard. The brand should really be kept where its appropriate because the name has negative connotations in any other field....

The xbox was fairly successful, largely because it disassociated itself from the windows brand...

Re:Patents

[peragrin]

Exactly. I have wanted tablets since I saw slates in 2003-2004 however I noticed that MSFT had basically destroyed slate abilities and made all tablets by them have to be convertibles as you needed a keyboard 90% of the time.

the Ipad, and now Android tablets are showing that you don't need a keyboard except for large data entry.
a slashdot post is not large data entry.

Re:Patents

[Anonymous Coward]

Had MS truly pen/touch enabled Windows from top top bottom (i.e. larger buttons, smarter click regions, better pen integration to windows GUI controls etc...), their model for tablet computing would have won out years ago.

Cool story, bro

Re:Patents

[Meski]

TO geeks, Windows 7 might be vaguely acceptable for a desktop machine, but it's totally unacceptable for a unit that runs on cells and can't afford to burn cpu cycles promiscuously. (ok, for the first part of that sentence, I'm probably handing over my geek card:)

B&N got nads.

[miffo.swe]

We have over the years seen giants like even IBM carefully thread around Microsoft, pussyfooting while Microsoft uses a chainmail. Its very refreshing to see Barnes and Noble taking the leaf out of their mouth and speak out, saying what everyone already thinks but wouldnt dare say.

If this keeps up, the discovery phase could be very interesting. Imagine getting subpoenas out to Motorola, HTC, Samsung and the others being extorted for specifics about their collisions with Microsoft? I would imagine that being of enormous interest to the EU and the DOJ.

Re:B&N got nads.

[Hognoxious]

pussyfooting while Microsoft uses a chainmail. Its very refreshing to see Barnes and Noble taking the leaf out of their mouth and speak out,

Your metaphors are like a petunia made from the D below middle C.

Re:B&N got nads.

[Anonymous Coward]

falling from the sky, thinking 'Oh no. Not again.'.

Re:B&N got nads.

[Black Parrot]

pussyfooting while Microsoft uses a chainmail. Its very refreshing to see Barnes and Noble taking the leaf out of their mouth and speak out,

Your metaphors are like a petunia made from the D below middle C.

FYI, when you use "like" it becomes a simile rather than a metaphor.

"He was a lion." ==> metaphor
"He was like a lion." ==> simile

So for your joke to work you should have said, "Your metaphors *are* a petunia made from the D below middle C."

(This bit of pedantry is brought to you by Slashdot. Stay tuned for more!)

Re:B&N got nads.

[miffo.swe]

Sorry about that, i was thinking about the fig leaf of peace. I'm also a Swede and English is my third language.

Corporations go into battle (or cooperation) with Microsoft with the best of intentions while MS only has one goal, to kill them. Barnes and Noble is one of the first that dares to take Microsoft head on. Since everyone else has lost against Microsoft their way is proven not working so it will be interesting to see how it works doing a full counter attack.

Re:B&N got nads.

[Black Parrot]

Of course; that's what the 'N' stands for.

Now what do you suppose the 'B' stands for?

Re:B&N got nads.

[arth1]

Sorry about that, i was thinking about the fig leaf of peace.

Metaphors just aren't your friends, it appears...
A fig leaf is a symbol of covering up; you want an olive branch for peace.

I'm also a Swede and English is my third language.

That's uncommon. Most Swedes would have English as their second language, and due to subtitling instead of dubbing TV and movies, be pretty good at it.
Did you mean Swedish (a Swedish resident) and not Swede (having a Swedish cultural heritage), or did you grow up outside Sweden?

Re:B&N got nads.

[man_of_mr_e]

More than likely, Motorola, HTC, and Samsung already have patent cross licensing with Microsoft. B&N does not have the years of previous experience that might have lead to such deals.

B&N seems to be trying to claim that enforcing ones patents is an anti-trust violation, but patents are government sanctioned monopolies so that's a ridiculous argument. They seem to be throwing everything at the wall and hoping something sticks.

"I didn't do this, your honor, and if I did I wasn't in my right mind, and if i was I was probably drunk and if I wasn't I was under duress and if I wasn't then nobody saw me do it, and if they did you can't prove it, and if you can I will yell, and if you ignore me or sanction me I will cry."

Re:B&N got nads.

[Anonymous Coward]

Yes, exactly. I don't like software patents. But they are here and companies need to deal with them within the law until we can get rid of them. From the licensing that other vendors such as HTC have done with MS it is pretty clear that they do have some patents that apply. So B&N needs to license them like everyone else. You can't just say, "but that isn't an important feature, so I can infringe on it without paying". Work on getting rid of the software patents - but until then play within the rules B&N.

Re:B&N got nads.

[Anonymous Coward]

Nah. Being part of the content Mafia, B&N can describe it so well, because that's how they are. ;)

Re:B&N got nads.

[miffo.swe]

No, its really not uncommon. Sweden have a very large group of immigrants, more than 13% of its population is born outside Sweden according to official statistics.

Re:B&N got nads.

[jmac_the_man]

Posting to undo a crappy accidental moderation.

Re:B&N got nads.

[Defenestrar]

... "but that isn't an important feature, so I can infringe on it without paying"...

Yeah - don't they know that's a copyright violators argument: "I'd have never paid for this crappy album so it's ok that I downloaded it." They really need to get their faulty IP defense straight if they want to screw it up in the standard model.

Now a decent argument would be that MS is trying to enforce patent claims outside the scope of the original approved claim. Often this will be done by badgering someone with the general patent preamble without getting into the "bulleted" specific claims of the invention's innovation (which is where the enforcement really matters).

The systematic "license or litigate" strategy as applied to inventions beyond the scope of one's patents could then be viewed as monopolistic competition stifling behavior subject to anti-trust enforcement.

PS - I really like my Nook Color

Re:B&N got nads.

[Lorien_the_first_one]

Hmmm. I really like the implications you raise here. I'm very pleased to see B&N go on the offensive as they do have counterclaims attached to their answer, too. If the DOJ wake up and the EU take notice, this could get really expensive for Microsoft. And I, as you, am really looking forward to discovery. I hope there is a worthy successor to Groklaw to track this.

Re:B&N got nads.

[Lorien_the_first_one]

Then perhaps they can enjoin some defendants who can help.

Re:B&N got nads.

[marcosdumay]

"B&N seems to be trying to claim that enforcing ones patents is an anti-trust violation"

No, they are arguing that enforcing THIS SET of patents, IN THE WAY Microsoft is doins is an anti-trust violation.

Re:B&N got nads.

[Rockoon]

What other way is Microsoft supposed to enforce their IP besides filing suit against an infringer that refuses to license?

Re:B&N got nads.

[miffo.swe]

For starters, how about reasonable terms and prices? The terms seems very awkward, the licensees only get to use a specific version of Android.

This for a price that is double the per unit price of Windows Phone 7.

You either use WP7 for half the price of a per device patent license, or get stuck in a very awkward position where updating your phones to newer versions of Android becomes a very difficult and cumbersome process involving Microsoft, or you license WP7 instead, from Microsoft. This can actually be one of the reasons HTC and Samsung seems so reluctant to upgrade their phones. If thats not stifling innovation i dont know what is.

Re:B&N got nads.

[Anonymous Coward]

Unless he/she is using the word "like" as a noun/verb and not the literal meaning of "like", you know, like, this.

Re:B&N got nads.

[Lorien_the_first_one]

I see that at least one lawyer from Cravath, Swain & Moore is representing B&N. Based on how they handled the SCO lawsuit, I would think they know what they're doing. They also have a couple of lawyers from Kenyon & Kenyon, LLC. Kenyon seems pretty adept at defending from patent infringement suits, too. I'd say that B&N has enough legal sense about them to defend themselves well.

Re:B&N got nads.

[lamber45]

... "but that isn't an important feature, so I can infringe on it without paying"... / Yeah don't they know that's a copyright violators argument: "I'd have never paid for this [terrible] album so it's OK that I downloaded it."

Microsoft is saying in public that the OS infringes their patents. In court, all they brought were these patents over browser and PDF-viewer features. Taking the image-loading feature as a particular case, even if that patent is upheld, they can patch the software to load webpages exactly the same way that NCSA Mosaic did it and at least not have to pay royalties on new devices.

Re:B&N got nads.

[oakgrove]

From the licensing that other vendors such as HTC have done with MS it is pretty clear that they do have some patents that apply. So B&N needs to license them like everyone else.

That is an absurd argument. The fact that HTC et al have deals with MS means jack concerning the validity of these patents. You have no idea what circumstances surrounded the licensing deals between MS and those other vendors. Any legal department at a major corp. that just says "everybody else is doing it (licensing) so we should too" thus giving up a major competitive advantage like using the free operating system Android, should be summarily fired.

Re:B&N got nads.

[deathguppie]

I don't know what you consider to be an invention but if you consider This is not that to be one of those thoughts so far above mortal men that Microsoft should be granted exclusive rights to it's use then I have a whole bunch of other ideas that I'd like to sell you.

The fact is that when you start patenting basic concepts and then throwing them around as the legal right to deny competitors entry to market. Then maybe you've gone to far and maybe it's about time someone said as much.

Just my 2 cents..

Re:B&N got nads.

[Anonymous Coward]

While you're here, what do you think "a chainmail" is/does? Because you're probably wrong about that too.

Re:B&N got nads.

[hedwards]

No, what they're saying is that MS is misrepresenting the value of the patents in the hopes of shutting down Android or at very least damaging the competition. And that would be a no no for a company with a dominant position in the OS market and an interest in having a larger presence in the mobile market.

Theoretically the courts could force MS to get rid of their patents or license them under reasonable terms. If you just own a bunch of patents but aren't a dominant player in a market you can ask pretty much whatever you like for your patents when you sue, but if you're a player in that area there may be other considerations.

Re:B&N got nads.

[Anonymous Coward]

By not asking for a NDA to reveal the patents supposedly violated.

Re:B&N got nads.

[Maestro4k]

B&N seems to be trying to claim that enforcing ones patents is an anti-trust violation, but patents are government sanctioned monopolies so that's a ridiculous argument. They seem to be throwing everything at the wall and hoping something sticks.

Actually, it's not that simple. They basically flat-out say, in addition to all that other stuff, that the Nook and Nook Color do not violate any of the patents that Microsoft is claiming they do. But they also point out that MS has a larger scheme and is doing things that are quite likely illegal in anti-trust law, plus they've done things that should invalidate one of the patents (deliberately withholding prior art). And they use MS's own claims against them, pointing out that MS claims their patents give them complete control over Android, and once you add up Android's market share in the mobile market + MS's own share + Nokia's (because of the MS/Nokia agreement) you'll reach.... 65% of the mobile market OS. Thus, anti-trust comes into play.

So it's a lot more subtle than what you're trying to claim, they're basically saying "we don't infringe on any of these patents at all; Microsoft is trying to abuse a monopoly position (by their own claims) to force competing OS's off the market; and oh yeah, they've been doing stuff that invalidates one of their patents too." It's more of a "we're pissed off and we're going to throw everything, including the kitchen sink, at MS in retaliation for being assholes" than just throwing everything at the wall and seeing what sticks. They seem to have their defense covered very, very thoroughly.

Gotta say though, Microsoft's attempts to try to muddy the waters about a NDA was rather childish. B&N's lawyer even had to call them out on it and tell them to stop trying to muddy the record about a NDA. And they still tried again after that to claim something they sent was covered under the very narrowly crafted NDA from the December meeting (when it was obviously outside the scope of that agreement even to a non-lawyer). It's quite obvious MS doesn't want the truth to be known here, which is not the mark of someone with a legit complaint.

Re:B&N got nads.

[Attila Dimedici]

Having gone to read the article, I believe that B&N is contending that MS and Nokia formed an agreement to use their mutual patents in a way that is an antitrust violation (collusion). They are in addition claiming that MS is demanding licensing terms that far outweigh the significance of their patents as a method of stifling competition. There is actual precedence for such claims being supported in court. I know of a specific case where a company lost its patent infringement suit because it had refused to license its technology to any competitors. I, also, recall some cases where companies were courts ruled in favor of patent infringers because the patent owners were asking for a licensing fee that the court ruled anticompetitive.

Re:B&N got nads.

[Rockoon]

For starters, how about reasonable terms and prices? The terms seems very awkward, the licensees only get to use a specific version of Android.

New versions of android may infringe more than the one they are are acquiring a license for. Microsoft is offering B&N a chance to license the specific IP rather than a blanket coverage of "Android version X" but is asking for an NDA (a pretty standard thing) which B&N refuses to sign onto.

This for a price that is double the per unit price of Windows Phone 7.

..and is infinite the amount of the per unit price Microsoft charges in licensing fees for the pound of american cheese I just purchased. If WP7 also ran android (and thus used the exact same set of IP,) you would have some sort of point. Android clearly has more features than WP7.

Why is it that the same people that say that WP7 is so horrible, are also the ones so damn surprised when licensing it is cheaper than licensing the be-all-end-all of mobile OS's known as Android?

Re:B&N got nads.

[Anonymous Coward]

Barnes and Noble isn't a direct coopetitor of Microsoft, and thus doesn't have to vaguely play nice.

Since Mircosoft is in an entirely different line of business, Barnes and Noble has no motivation to play in such a way as to avoid destroying mutually beneficial market properties.

Re:B&N got nads.

[Anonymous Coward]

coopetitor

I know it's a typo, but I like that word, and it even fits. Competitors forced into a necessary cooperation.

Re:B&N got nads.

[marcosdumay]

"New versions of android may infringe more than the one they are are acquiring a license for."

If it is so, it is Microsoft burden to call the people using such a version and negotiate a license for those new patents it is using. A license agreement stating "you shall not offer up-to-dte services" is just anticompetitive.

"Why is it that the same people that say that WP7 is so horrible, are also the ones so damn surprised when licensing it is cheaper than licensing the be-all-end-all of mobile OS's known as Android?"

Because Microsoft does not own Android, and, as you put quite clearly, is trying to sell licenses of it. If you think it is ok, I have a couple of bridges to sell you.

Re:B&N got nads.

[Rockoon]

Because Microsoft does not own Android

Microsoft claims to own parts of Android. Thats the whole purpose of the lawsuit.

Did you forget that thats what the lawsuit is about?

Re:B&N got nads.

[arth1]

Immigrants are Swedish, but not Swedes. Swedes are either people with a Swedish cultural background or rutabagas.

In other words, Swedish Turks are not Swedes any more than a Swede living in Turkey is a Turk.

Re:B&N got nads.

[Locutus]

B&N had not been in the software no computer business EVER so this is all relatively new to them and when a company like Microsoft, using the tactics they've employed for 20+ years, B&N probably looked at them and said WTF are you kidding. Remember when the netbooks hit the market and after one hot year of Linux netbooks, we heard the head of the Taiwanese Manufacturing Association publicly state "they" are afraid of Microsoft on laptops, notebooks and devices like that and not so much on things like phones? Remember the CEO of Asus on stage with Microsoft apologizing for showing a ARM Snapdragon based netbook after it was pulled from their booth?

B&N got a taste of how Microsoft operates and as an outsider to the computer industry sounds pretty shocked at how they were bullied and is being open about it. I may go out and buy a Nook just to know I'm indirectly supporting their efforts. They will be getting a letter of encouragement from me because most, if not all, of those patent claim are pathetic. IMO

LoB

Re:B&N got nads.

[Locutus]

If you've been around for even a short time, a license agreement does not mean a patent is valid. It only means one company justified the expense of the licensing over the cost of fighting it and what that might bring. HTC probably signed the deal because it ended up being paid to go back to shipping Windows phone OS based devices. We've seen Asus decide to take an old version of Windows( XP ) and replace Linux on their netbooks even though it meant putting more hardware on the devices and running the price up. Sure they paid Microsoft for the licenses but what you didn't see was how much Microsoft paid Asus for putting a Windows logo on the box and on their web sites. That is called a marketing kick back.

B&N does not need to license them because the patent system is built on the premise of the courts deciding if a patent is really valid instead of the USPTO. That is one reason why the system is so broken. It takes more and more money to fight off a patent thug when they throw more and more phony patents at you. This is why companies are joining groups to pool patents. It's like the old cold war mutual destruction threat. It sucks and I hope B&N is able to fight them off and show it can and should be done. I hope Google and other Android using vendors are talking with them behind the scenes on this too.

LoB

Re:B&N got nads.

[jbengt]

You can't just say, "but that isn't an important feature, so I can infringe on it without paying".

Which is why Barnes & Noble aren't saying that.
They are saying "but that isn't an important feature, and we don't use it"
and "but that isn't an important feature, so Microsoft shouldn't be able to charge more for the patent license than it costs to license Window Phone 7"

Re:B&N got nads.

[jbengt]

but is asking for an NDA (a pretty standard thing) which B&N refuses to sign onto.

MS asked for an NDA just for a meeting to tell B&N what patents B&N infringes and how they infringe them. If that's a standard thing, something is wrong with the patent system - patents are supposed to encourage disclosure.

Re:B&N got nads.

[lolcutusofbong]

!valid

Re:B&N got nads.

[david_thornley]

What's wrong with making a simile about a metaphor? It's analogous to making a map of a road - not the same thing but close enough in some respects.

Re:B&N got nads.

[hazydave]

There are a couple of reasons a company will use patents offensively. One big one is simple: to make money. In this case, it's fairly critical that the company has either very solid and very current patents, that they have hundreds or thousands of patents to throw your way, and/or that they price the patent licensing such that it's ultimately more expensive to fight than to pay.

There may be other reasons for a company to license, too. For example, Microsoft could be after money, but if they're going after a modern smart phone company, they may also be worried about getting hit with patents themselves. So they may really be after a cross-license.

An example of all of this was IBM in the late 80s. I was a primary technical adviser to Commodore's legal team when IBM came after the Amiga computer. IBM had some amazingly awful patents in those days: they had a department that had learned to hack the patent system, and they had flooded the PTO with thousands of software patents with absolute mountains of prior art. But the PTO didn't even have software people in those days. So how, for example, would the examiner have known that IBM's 1984 application for "Cut and Paste Between Multiple Text Buffers" (or whatever they called it) perfectly described the behavior of Emacs in the 1970s.

But IBM had pretty unlimited patents. If you succeeded in defending or invalidating that first stack of 25-50 patents, they'd be happy to toss another 25-50 your way. The licensing arrangements charged for 1, 2, or 3-or-more. So basically, you had to fight off nearly everything to be able to not sign a licensing deal. And IBM was also after our patents, back then. They pretty much wanted a cross license with every other computer company, so they wouldn't have to worry about being caught on something.

So there's a very good chance HTC just found it easier to sign with MS than fight them. Maybe it was just chump change to them... they're not going to be paying royalties on hardware sold outside of the US, in all likelihood. And perhaps they also wanted a cross licensing deal with MS, who knows. That says absolutely nothing about the validity of the patents.

Patent holders with shaky patents (which includes many if not most software patents) have to be careful, too, about rousing a foe. If MS does go to court and has some of these patents struck down, that's very bad news for them. Since these licensing agreements are all done in secret for the most part, no one really knows the details of all their agreements. But it might mean dozens or hundreds of companies paying on the basis of one of these dead patents, who will not only stop paying, but possibly end cross-licensing, sue Microsoft, etc. And this makes any of their other patents more likely to come under the magnifying glass. If there's enough patent abuse, the PTO may step in and re-examine these, without the need for opponents to pay for an expensive trial.

And of course, B&N and their lawyers know this.

Re:B&N got nads.

[mithran8]

You could say a simile is *like* a metaphor, in that they're both analogies.... Oblig xkcd.

And once Elops done they'll get even more patents.

[phonewebcam]

The rape of Nokia is well under way. He'll return to m$ from its smouldering ashes with a fucking sackful of them.

What is a patent for?

[Rockoon]

'Microsoft intends to utilize its patents to control the activities of and extract fees from the designers, developers, and manufacturers of devices, including tablets, eReaders, and other mobile devices, that employ the Android Operating System.'

It would be a strange system where a patent holder couldn't do these things. What precisely does B&N think patents are for?

Re:What is a patent for?

[fuzzyfuzzyfungus]

Unless whoever in legal wrote/checked out B&N's statement is a complete moron, I assume that that particular line is attached to the broader claim that Microsoft is using patents that are either invalid, overbroad, or irrelevant; but excessively expensive/time consuming to challenge, to do that.

As you say, patents are supposed to confer an exclusive right to the holder; but(given the seriously uneven quality of patents granted, and the substantial expense of litigation) the allegation that a company is using its patent portfolio to illegitimately assert exclusive control to which it is not entitled certainly seems to be well within the realm of plausible.

It will take slogging through each patent to know for sure; but the strange 'linux violates our patents, we just won't say exactly which ones' game that MS played for a number of years doesn't fill me with optimism concerning the sound foundation and good faith of their android-related claims...

Re:What is a patent for?

[miffo.swe]

Well, one funny aspect is that Microsoft charges more per device for a couple of vague patents than they charge for the entire Windows Phone 7.

It would be bad enough if it was priced at a similar price as WP7 but double the price?

Re:What is a patent for?

[Anonymous Coward]

It would be a strange system where a patent holder couldn't do these things. What precisely does B&N think patents are for?

Presumably to encourage people to innovate, create their own inventions and thereby profit instead of failing to do so and instead setting up a racket to extort the work of others. But hey, what do I know?

Re:What is a patent for?

[man_of_mr_e]

Except that Microsoft has listed the explicit patents they claim that B&N is violating. There's no FUD there, there's no hand waving.

Re:What is a patent for?

[nschubach]

Microsoft has listed 6 of the patents, but claims there are more. Microsoft revealed/introduced these 6 patents and claimed that there were more and they could shut down Android but wouldn't explain more without an NDA. B&N views patents as public record (well, because they are) and saw no need to sign an NDA to reveal the rest of the infringing patents. So, in this document, they are claiming Microsoft is being deliberately dishonest in attempt to extort money from companies.

Re:What is a patent for?

[inode_buddha]

Then why did they want B-N to sign an NDA to see how they were supposedly violating?

Re:What is a patent for?

[elsurexiste]

'Microsoft intends to utilize its patents to control the activities of and extract fees from the designers, developers, and manufacturers of devices, including tablets, eReaders, and other mobile devices, that employ the Android Operating System.'

It would be a strange system where a patent holder couldn't do these things. What precisely does B&N think patents are for?

You raise an interesting point. If you weren't allowed to charge patent fees, then patent trolls and this kind of things wouldn't exist. That's a cool notion!

Re:What is a patent for?

[poetmatt]

considering that the patents are questionable and don't even cover android, what precisely do you think *these* patents are for?

Re:What is a patent for?

[lorenlal]

This parent needs to be modded up. I know that very few of us are surprised that Microsoft went SCO on this, but requiring an NDA to see which patents were violated just reeks of patent trolling. Last I checked, *we're supposed to know that patents exist and what they cover so we can avoid violating them!*

Of course, I'm sure that they also acted in good business faith and contacted the other parties about these patents to allow Google et. al. to fix and remove the offending code. I'm also completely convinced that the patents in question provide true innovation and are worth licensing.

Just another case of "Software patents gone wild." Remember American brethren, contact your congresspeople and tell them to go EU style in regards to software patents because our current system continues to prioritize litigation over innovation.

Re:What is a patent for?

[Rockoon]

Presumably to encourage people to innovate, create their own inventions and thereby profit instead of failing to do so and instead setting up a racket to extort the work of others.

One method of profiting is to license your inventions to others.

B&N may have a case that the patents in question do not cover their device, but that is different from their claim that patents shouldnt be used to "extract" license fees from them. They might also have a case that the license fees are discriminatory, but that seems unlikely considering that other companies making android devices (some of B&N's competition) are paying those very same fees or cross-licensing their own IP with Microsoft.

Re:What is a patent for?

[Rockoon]

considering that the patents are questionable and don't even cover android

Thats for a court, and not you, to decide. If they so obviously don't cover B&N's devices then they have nothing to worry about.

Re:What is a patent for?

[erroneus]

That does seem to fly in the face of "fair and reasonable" where costs are concerned. That is unless you realize that Windows is worthless (that is without worth or value) then charging more for a patent than the OS approaches fair and reasonable... at least in a humorous way.

Re:What is a patent for?

[miffo.swe]

If you read the filing over at groklaw you see that the terms are anything but reasonable. Another thing that stands out is how intent they seem at keeping these deals secret. If the other companies that has already taken the license band together i really think they have a solid case against Microsoft and ample chance of getting huge damages because of lost sales and being forced to pay unreasonable amounts.

 

Re:What is a patent for?

[erroneus]

Yes... the old "NDA" trap.

The first rule of Microsoft NDAs is that you don't talk about Microsoft NDAs.

The second rule of Microsoft NDAs is that you don't talk about Microsoft NDAs.

Re:What is a patent for?

[hedwards]

Because it's easier to decide whether or not to pay if you've actually seen the patents that are supposedly involved. Additionally as soon as B&N starts filing papers against MS involving the alleged patents they show up in the public record, MS would have to demonstrate to the satisfaction of the judge that those public records shouldn't be made public. They could do that, but I doubt they'd be successful.

Re:What is a patent for?

[Dachannien]

Probably part of this is Microsoft avoiding being sued for a declaratory judgment of non-infringement in a venue they don't like. I don't remember the case law reference, but there was a ruling a few years ago that essentially says that if you seek licensing fees for a patent or if you threaten litigation in assertion of a patent, then the potential licensee/infringer has a cause of action to sue for a declaratory judgment of non-infringement. In such a case, whichever party makes it to court first essentially gets to choose venue, and a lot of times, that ends up being the potential licensee/infringer, since the patentee would likely rather just get royalties with no lawsuit involved.

By making vague statements concerning infringement, Microsoft prevents their targets from filing for declaratory judgment over the unnamed patents until it's clear whether the targets are willing to license or not, at which point Microsoft would be ready to file its own lawsuit. It's not clear to me whether Microsoft is legally permitted to leverage an NDA to implicitly forbid the signatories of the NDA from filing a lawsuit (since the lawsuit would necessarily involve disclosure).

Re:What is a patent for?

[DavidTC]

Because it's easier to decide whether or not to pay if you've actually seen the patents that are supposedly involved.

That's not the question. The question is why should B&N have to sign an NDA to be informed of what they're infringing.

Patents aren't secret. They are a matter of public record, and anyone can look them up. The second anyone who claims patent infringement starts acting as if they are secret, well, it's SCO all over again, and we have a pretty clear warning sign the case is bogus.

Incidentally, Microsoft has a financial reason to disclose what patents are infringed, because if you inform someone they're infringing your patent, you can get a lot more damages if they kept doing it afterward and you later win in court. Whereas 'unknowing' violations result in less liability. (And, no, vaguely asserting 'some parts of millions of lines of code infringe some of our thousand patents' does not count as notification.) The second you actually inform them of the actual infringement, you start collecting triple damages if they keep doing it and a court says it's infringement later.

The only reason to not be specific is if they are just creating FUD and don't actually have a case, like B&N asserts.

Re:What is a patent for?

[jbengt]

. . . their claim that patents shouldnt be used to "extract" license fees from them.

They aren't claiming that.

They are claiming that they are trying to extort more than the patents would be worth if they were valid:

"Microsoft has impermissibly broadened the physical scope of the ’372, ’780, ’522, ’551, and ’233 patents in furtherance of a plan or scheme orchestrated by Microsoft and its agents to eliminate or marginalize the competition to Microsoft’s own Windows Phone 7 mobile device operating system posed by the open source Android Operating System and other open source operating systems. As part of this scheme, Microsoft has asserted patents that extend only to arbitrary, outmoded, or non-essential design features, but uses these patents to demand that every manufacturer of an Android-based mobile device take a license from Microsoft and pay exorbitant licensing fees or face protracted and expensive patent infringement litigation. The asserted patents do not have a lawful scope sufficient to control the Android Operating System as Microsoft is attempting to do, and Microsoft’s misuse of these patents directly harms both competition for and consumers of all eReaders, smartphones, tablet computers and other mobile electronic devices."

They are also claiming that MS and Nokia illegally colluded to destroy Android using their combined market dominance and patent portfolios:

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. Indeed, in videotaped remarks made two days after the Microsoft-Nokia agreement was announced, Nokia’s CEO Stephen Elop confirmed that Microsoft and Nokia had discussed how their combined intellectual property portfolio is “remarkably strong” and that Microsoft and Nokia intended to use this combined portfolio both defensively and offensively.1 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.

Re:What is a patent for?

[hazydave]

There's an awfully good chance Microsoft knows these "violating patents" are drek. They also understand the difficulty of fighting patents in court, simply because the presumption is that a granted patent is valid. It's a long and expensive process.

However, with the patents revealed, all sorts of other parties get involved. And if there's a patent of absurdity in these patents, whether its blatent disregard to obvious prior art, or simply Microsoft making absurd claims of what they do cover, the case could go well beyond B&N. The PTO themselves could launch an investigation, for example, if there's a patten of abuse of the process by Microsoft on these patents. As well, they presumably have licensees paying for these now, who also have a financial interest in seeing these killed. But under NDA, they really don't know each other. When done in public, this could be much worse for MS than they counted on.

And I like B&N's attitude on the NDA -- there is absolutely no legal reason B&N needs to consider signing that NDA. If they're going to court for patent violation, Microsoft will eventually have to put up or shut up. In public.

Re:What is a patent for?

[lpq]

This reminds me of the SCO lawsuit -- where they can't tell you what they are suing your for because the patented methods are 'secret'...um, then how would they be patented? You can't patent something without filing a detailed enough description to verify whether or not something infringes -- so if MS says an NDA is needed to tell you about the "patents", then it's an admission that they are not filed.

Did the US move to 'first to patent'? If not, and we are still using 'first to invent', I suppose MS could be claiming they have stuff that they 'could patent' -- but haven't yet...but that would be a pretty dubious claim.

All's well with the world

[Black Parrot]

It's good to see PJ still digging through massive court briefs to bring us the details on IP court battles.

And it's good to see Microsoft acting all the evil ways we'd come to expect. For a while the world was getting a little big crazy, and hard to understand.

Re:All's well with the world

[gmack]

Evil is the word for it. Just check this part out:

36. The final asserted patent, the ’233 patent, relates to the storing and displaying of annotations of text which is not modifiable. As noted in other portions of this Answer, Affirmative Defenses, and Counterclaims, the claims of the ’233 patent are unenforceable because they were procured via inequitable conduct. During prosecution, Microsoft and its attorneys failed to disclose a prior art reference, U.S. Patent No. 5,146,552 to Cassorla et al., that the European Patent Office identified as pertinent and invalidating. Further, Microsoft even failed to disclose the European Patent Office’s assessment and description of the prior art, despite the fact that such assessment and description conflicted with Microsoft’s representations of the prior art to its invention. Moreover, in addition to being unenforceable, other prior art renders the ’233 patent’s claims invalid. In the ’233 patent itself, Microsoft admits that publishing houses wanted their documents to be in the form of non-modifiable text at the time users wanted to annotate. It was obvious to respond to the demands of both publishing houses and users. In implementing the concept of annotating non-modifiable documents, Microsoft did not have to devise any unique solutions, but merely applied well known techniques to the problem created by the advent of electronic publishing. This was nothing more than the utilization of common sense solutions to a problem, and there is nothing patentable about the concepts allegedly covered by this patent. In any event, neither the NookTM nor Nook ColorTM device employs the subject matter set forth in the ’233 patent, or infringes any valid, enforceable claim of that patent.

There really need to be sanctions applied to attorneys who pull stunts like that.

Re:All's well with the world

[man_of_mr_e]

What exactly does the european patent office have to do with a US patent suit?

Re:All's well with the world

[Anonymous Coward]

What part of american patent law says that only US prior art is relevant?

Re:All's well with the world

[AliasMarlowe]

What exactly does the european patent office have to do with a US patent suit?

Any relevant action by a foreign patent office must be promptly disclosed to the US PTO (37CFR 1.97, 1.98). In other words, it's required by law.

Re:All's well with the world

[Anonymous Coward]

Maybe something along the lines of the patent which was invalidated by a foreign patent office on the grounds of prior art. Ianal but prior art is prior art no matter which country it came from so the patent should have been rejected by the patent office in the US.

This can then be used to point out that this patent has prior art which MS knew about (the EU rejection) but was not recorded against for their US patent application. If they have done it for this patent, maybe they have done it for one or more of the other patents...

Re:All's well with the world

[jbengt]

Prior art

Re:All's well with the world

[man_of_mr_e]

During the patent application. Do we know there was such an action carried out during hte pattent application process?

It's the patent system, stupid

[jamesl]

A lot of bluff and bluster against Microsoft for defending a patent. Barnes and Noble needs to attack the patent or the patent system. Fighting a PR battle is evidence that B&N doesn't have the facts necessary to win the patent fight.

Re:It's the patent system, stupid

[Black Parrot]

A lot of bluff and bluster against Microsoft for defending a patent. Barnes and Noble needs to attack the patent or the patent system. Fighting a PR battle is evidence that B&N doesn't have the facts necessary to win the patent fight.

But then MS is fighting a PR battle as well.

Maybe they're both wrong? Maybe they hope to subvert the courts via public pressure? Maybe the patents aren't what the fight is actually about?

Re:It's the patent system, stupid

[dcollins]

I agree. Most unfortunately, this smells of desperation when I read it.

Re:It's the patent system, stupid

[jrbrtsn]

B&N cannot expect to change the patent system, and attacking the patents will take years and tens of millions of dollars - with no guaranteed outcome. Given that Microsoft is charging more to license the patents for Android than the cost of an equivalent MS OS license, how can their actions be interpreted as anything but anti-competitive?

Re:It's the patent system, stupid

[itsdapead]

A lot of bluff and bluster against Microsoft for defending a patent. Barnes and Noble needs to attack the patent or the patent system. Fighting a PR battle is evidence that B&N doesn't have the facts necessary to win the patent fight.

Go read TFA from Groklaw - It includes a metric shedload of attacks on the validity and applicability of the patents, as well as the "Microsoft is being evil" PR stuff (which could be crucial if the case ever ends up in front of a jury).

Re:It's the patent system, stupid

[JasterBobaMereel]

It's simple they don't have the facts because MS have not actually listed which patents TheNook infringes, B&N have done a search and found nothing they need to worry about ....

MS have been doing this for some time,
      You are infringing loads of our Patents
        Which ones?
        We won't tell you except in court ...
Up until now they have not actually taken anyone to court, and so have not had to reveal what they are basing this on... it might be (and B&N seem to think) that it is a load if outdated, irrelevant, or over generalised patents that won't actually stand up in court, and MS hoped B&N would not contest ...

 

Re:It's the patent system, stupid

[Sc4Freak]

Ironically, Microsoft is already fighting the current patent system. They're one of the biggest supporters of patent reform becuase in the end, Microsoft loses way more money defending against patent trolls than it gains from licensing deals.

Re:It's the patent system, stupid

[Anonymous Coward]

Right -- it's the patent system. Some of us are living in (well, kinda) democracies. So fighting the patent system *starts* with a PR battle.

Let everyone know that *patent matters*. Don't let those dirty robber barons do their thing in the cozy dark. Shout, yell, tell everyone.

Don't go sit in a corner, slowly shake your head and mumble "they are too strong". Fight.

Re:It's the patent system, stupid

[Idbar]

Well, someone needs to set a precedent that some large corporations are abusing the system. Seems to me a first step to provide insight about the need of a reform. Fighting small patent trolls is not going to make it.
 
  while I see this as a desperate attempt from B&N, they may also have a point. Besides, what is it exclusive to B&N that MS is attacking, that is not in any other reader, including the iPad?

Re:It's the patent system, stupid

[Missing.Matter]

Aren't patents by definition anti-competitive?

Re:It's the patent system, stupid

[Missing.Matter]

Besides, what is it exclusive to B&N that MS is attacking

Maybe other companies are licensing tech from MS. Or, maybe they have a large enough tech patent portfolio to assure mutual destruction if MS were to sue. I don't suppose a book retailer has too much in the way of ammo against MS, so they're a safe target.

Re:It's the patent system, stupid

[erroneus]

Of course B&N doesn't have all the facts. Microsoft claims there are more patents it can and will assert but would not reveal which ones without their signing an NDA first. This is extortion and blackmail on Microsoft's part. They are certainly not dealing straight and honest. But that is precisely how Microsoft has been dealing with their patent threats over the past what...? decade? Microsoft claims "Linux infringes on no fewer than X patents" and then won't say which patents they are preventing people from changing or challenging the patents. To me, it's like trying to win an argument by simply saying "you're wrong!" without providing any supporting details.

How well would it fly in court if a police officer issued you a traffic ticket but wouldn't tell you what you are being charged with? Fortunately, we have laws which make providing the specific charges and evidence to the defendant a requirement. Why we don't have this in civil cases prior to going to court is beyond me.

This also kinda reminds me of a neighbor one floor below me. She claimed that something in my area was affecting something in her area... in this case, plumbing and she wanted me to pay for repairs. I requested to look at the damages and she refused to let me see them. So I just closed the door. Don't come to me demanding money without letting me see what I am spending my money on. You would think she was the IRS or something.

outmode

[goombah99]

When you can't come up with a better product, it's time to call in the lawyers.

Patent protection is valid even if you are not the most qualified or successful at implementing your ideas. indeed that's the point. it is supposed to stifle the competition so that you can be completive yourself or force them to pay you.

How can "outmoded" and "inessential features" be considered a defense against a patent? Isn't that the whole point of a patent? doesn't it describe a feature whose duration of being protected is exactly prescribed? It can't be outmoded during this time by definition. And if the feature is inessential then why did android choose to include it. The whole point of a patent is the right to say "no you can't include that way of doing something".

They don't seem to be arguing that the patent was obvious and incorrectly awarded. Instead they seem to be arguing designs can't be patented because designs are arbitrary. Which again is the whole point of the "design" patent. Unlike a concept patent, a design patent is much narrower protection of arbitrary features.

B&N seems instead to be arguing against patents. Better to make that argument when you are not being sued for violating one.

Re:outmode

[ThosLives]

Patent protection is valid even if you are not the most qualified or successful at implementing your ideas. indeed that's the point. it is supposed to stifle the competition so that you can be completive yourself or force them to pay you.

And this is the fatal flaw of patents: patents, which should ideally be a net benefit to society, instead are proving to carry with them a real, measurable loss function. If the patent holder is not the best implementer, then society suffers because the cost to society for the better implementations is higher than it would be without the protection. This is especially true in fast-moving fields like software where by the time a patent expires the technology is obsolete; the benefit society should have reaped from the invention is reduced and/or delayed due to patents.

Yes, there are always counterexamples where some Large Company abuses a relationship with some individual and "steals their idea." But, as a society, we have to ultimately ask ourselves, just how much protection should an individual have at society's expense? That, however, is not really a question appropriate to patent discussions.

Re:outmode

[strobe74]

you should probably read the claims from MS, and read about the ridiculous pattens that they've had to hide for years from the linux community, and then read the response by BnN before you post responses like this. It makes it clear you haven't ready any of those things and are just blowing hot air. BnN has legitimate claims that Microsoft's pattens are BS and are not infringed upon in any way by the Nook. They also make a strong argument that MS's only goal is to shut down android at all costs by trying to charge licencing fees for their laughable pattens that are higher than the licence cost of windows 7. Check out Groklaw (http://www.groklaw.net/article.php?story=20110427052238659) and you can read about all of this. Microsofts only hope of winning is that BnN goes bankrupt. I would say that it's in google's interest to make sure that doesn't happen. Google can stop Microsofts push against android by invalidating any claims of "infringement" in one fail swoop. And if MS looses this, they should prepare themselves for a long ride in the back seat of the mobile computing future. I doubt that you'll bother, but if you read on in the comments you'll notice how many people can give you exact software systems that used all of the features in each of these pattens well before 1992, which is prior art. Basically if BnN doesn't go bankrupt and can see this through.. not only will MS be stopped in their tracks and be forced to compete on the merits of their product (lol) but they're going to loose all of those pattens to prior art as well. Personally, I hope BnN jams their foot up MS's back side.

Re:outmode

[cavreader]

The hostility in your response makes me wonder if the roles in this dispute were reversed would you still be making the same passionate arguments? BnN is not a mom and pop operation so they should be able to defend themselves without going bankrupt. It has been demonstrated over the years that patent disputes are not simple affairs and the rulings are very unpredictable to say the least. There have been cases where there was considerable prior art that still didn't invalidate the patent. There have been rulings for and against big companies and individuals. Then you have the patent trolls who do not and have not designed, built, or implemented any part of the patents they hold and basically only use the patents to blackmail companies to pay up. To me this is the biggest patent issue today. If you are going to patent something you should be required to actually use the patented process or idea to validate the patent in the first place.

Re:outmode

[alostpacket]

Patent protection is valid even if you are not the most qualified or successful at implementing your ideas. indeed that's the point.

Indeed that's true but...

They don't seem to be arguing that the patent was obvious and incorrectly awarded.

No, that's exactly some of the claims B&N is making, they cite prior art on numerous sections.

FTA

30. During the discussions, Microsoft also threatened Barnes & Noble with claims of infringement of the ’536 and ’853 patents which relate only to simulating mouse inputs using non-mouse devices. The ’853 patent misrepresented the state of the art at the time the patent was filed by stating that “a need exists for permitting a user to perform all operations of a mouse-type device using a stylus.” This, however, is demonstrably incorrect. The ’536 and ’853 patents were filed in November 2000. Long before that time, numerous systems had been developed that enabled computer users to simulate mouse behavior with touch input devices. For example, U.S. Patent No. 5,327,161 to Logan et al., entitled “System and Method for Emulating a Mouse Input Device with a Touchpad Input Device” (the “’161 patent”), was issued in 1994, years before the ’536 and ’853 patents were even filed.

They also use various other afirmative defenses including alledging anti-trust patent collusion with Nokia, and attempted extorsion through thinly veiled threats of litigation. Those past two parts I think are the really interesting part of this. If B&N succeeds at proving that part of the defense, the whole "sue Android out of our way" strategy MS is using will be shut down completely. The part you are refering to, that the patents were used improperly, is, from what I can tell, part of the evidence towards the bad faith negotiations they were making and adds to the anti-trust defense. But it's just a part of the anti-trust allegation and not the whole of it.

Re:outmode

[oh_my_080980980]

"B&N seems instead to be arguing against patents. Better to make that argument when you are not being sued for violating one."

That's what Microsoft is arguing in the i4i case. Glad to see you pay attention to current events.

FYI Microsoft has not demonstrated any infringing patents in Android and design patents are hardly as strong as you think. Apple lost it's suit against Microsoft over the trash can icon on the desktop in an OS.

Re:outmode

[oh_my_080980980]

The hostility in your reply to ignore the poster's comments leads me to believe you did not read the comments or did not understand the comments or did not have a proper response so you decided to go off on a tangent that had nothing to do with the comment.

Kudos for being a dick.

Re:outmode

[cavreader]

My reply was an honest evalution. My comments went on to address the unpredicatable nature of patents which was the topic at hand. You must have an anti-MS burr stuck so far up your ass you can't recognize an honest question. Group think techies who let personal animosities influence your perception of technology issues are way to prevelant today.

Re:outmode

[hazydave]

The original purpose of a patent was never to stifle the competition... quite the opposite. The patent gave you a very temporary monopoly (17 years from date of acceptance, originally, back in an era in which nothing all that significant happened technologically in 5-10 year spans) in exchange for your publicly revealing the specific process of your invention. This would allow others to build new things on top of your invention.

As well, the invention doesn't cover an idea. Rather, it's a very specific implementation of a "useful" process or machine. Nothing abstract can or should be patented. They've kind of fallen off track on that part at the PTO, but haven't really justified why. I know originally, at least in the early days of software patents, software couldn't actually violate any patent... it was your hardware running the software that in effect violated someone's software patent. That's why, even today, Microsoft or Apple sue the Android HW companies, not Google itself, if they think they have some patents to hold over Android.

Someone really should be arguing against some of the ludicrous ways in which patents are awarded. I mean, software patents are bad, but not even the worst. There are a slew of "business method" patents that basically just take something we've done for thousands of years, tacked "on the internet" to it, and essentially patented not a specific method or process of doing this thing on the internet, but the basic idea.

Re:outmode

[Rob Y.]

Whatever you think of software patents, the anti-trust angle is a potent one here.

The main patent that Microsoft has repeatedly been able to use to extort money (and patent credibility) from makers of linux-based devices is the Fat32 'long/short' name trick. This 'innovation' is essentially a patch to a bad design that nobody would use if they didn't have to use it to be compatible with 90% of the computers out there. TomTom doesn't use FAT32 because it's technically elegant - they use it because their customers have Windows PC's and won't buy their product if it won't 'just work' with their PC.

Microsoft's not supposed to be using their monopoly in this way. They didn't write the offending code, so the only thing to 'license' is the inane patent - worth exactly $0. So even if the courts don't throw out all software patents, the DOJ ought to require 0 licensing for 'windows interoperability' patents.

Re:outmode

[strobe74]

"B&N seems instead to be arguing against patents."
That statement right there is what added the annoyed tone to my post. That statement tells me that the poster doesn't know what they're talking about at all. if they had read BnN's response or even skimmed it they'd know that BnN isn't arguing about the pros and cons of patents. When a company tells you that putting " LOADING " over the top of an application that's in the process of loading data, that you need to pay exorbident fees because that somehow was "inventive" it's a laugh. That falls into the category of completely obvious to anyone since the only other place you can put it is "not on top of" the application but outside of the application boundary on the screen. .. yeah.. we should just hand over android now. Clearly MS is going to lose the massive amounts of money that went into RnD on that puppy. And think of the years it took them to look at.. you know.. every other application that's ever used that going back to the 70's. Very inventive on MS's part.
And how about the patent they're trying to enforce that was previously proven by the patent office, to be gained by deliberate deceptive means. When MS and their attornies deliberately left out previous implementations of the exact same thing that were already deemed important and related. They got busted for that way before this ever happened yet here they are trying to now enforce something that's unenforceable and has been stated so by the Patent Office.
Again.. if that person, or you had skimmed the documents that have been submitted by both parties you'd see that the statements by the original poster are completely unrelated to what's really going on.
Mostly though.. my annoyance is at MS. They've been here many times before and have been slapped down for it in the US and in Europe repeatedly.. and here we go again. Microsoft's "OH NO! a product is better than ours and we can't compete in the market place.. lets do everything we can to screw it up!" mentality is unwelcome. IMO It goes to show that MS has had it's day and shouldn't be (and probably won't be in the long run) in the position they are.
Anyway, it's a good read.. i encourage everyone to take a look and what both sides have submitted. Don't believe me.. go see what the super inventive patents that MS has (for good reason) been hiding from the Linux community for years. It will become clear why MS doesn't want the patents revealed publicly.

PJ!

[Rinzwind]

You rock!

who wrote B&N's statement

[doperative]

"Unless whoever in legal wrote/checked out B&N's statement is a complete moron, fuzzyfuzzyfungus

'Microsoft is misusing these patents as part of a scheme to try to eliminate or marginalize the competition to its own Windows Phone 7 mobile device operating system posed by the open source Android operating system and other open source operating systems .. Barnes & Noble denies the remaining allegations set forth in this paragraph. 15. Denied. 16. Denied. 17. Denied`. link

--

"I assume that that particular line is attached to the broader claim that Microsoft is using patents that are either invalid, overbroad, or irrelevant; but excessively expensive/time consuming to challenge, to do that", fuzzyfuzzyfungus

Do you assume that the Android OS is violating MS patents, if so, explain your reasoning ...

Re:who wrote B&N's statement

[fuzzyfuzzyfungus]

Given the extraordinary broadness and obviousness of the patents mentioned in the filing, It would appear that an extraordinary variety of software released in the past ~25 years, probably including Android, does violate them. It would also appear that none of them should have been granted.

'the “display of a webpage’s content before the background image is received, allowing users to interact with the page faster,”' Wow. Feel the innovation...

Re:who wrote B&N's statement

[ifiwereasculptor]

I was wondering what would happen if someone patented "withholding the display of a webpage until the background image is loaded, assuring the design's unity" or similar crap. Would we have to give up using background images altogether?

Re:who wrote B&N's statement

[Anonymous Coward]

If I remember correctly back in the old dial-up days I would wait for a page to load (of course) and it would eventually load and I would start scrolling around (interacting) thinking that all was good and then BAM! the gaudy seizure inducing gif background would load rendering the site unreadable.

Re:who wrote B&N's statement

[Anonymous Coward]

That would violate my patent of "Displaying of text or hypertext without a background image."

Good for you, BN

[Anonymous Coward]

I have no desire for an e-reader, but I'm buying a Nook at BN when I go into the city this weekend.

Re:Good for you, BN

[erroneus]

I'll take it off your hands when you decide you have no use for it... I think I can put some use to it. I don't want to buy one "new" -- still too expensive for me.

Re:Good for you, BN

[The Yuckinator]

Make sure you head over here once you get it home.

Buying a Nook was the best $250 I've spent in a long time.

Cue the shills and apologists...

[advocate_one]

All claiming Microsoft is perfectly justified in their behaviour...

once a convicted monopolist, always a convicted monopolist...

Re:Cue the shills and apologists...

[drinkypoo]

It will be interesting to see what Obama's DOJ does with Microsoft. Will they, too, find that Microsoft has abused its monopoly position, and then let them off the hook without so much as a handslap as Bush's DOJ did? Or will they not even make that token display, and simply laud Microsoft's tenacity?

Re:Cue the shills and apologists...

[dimethylxanthine]

If once you start down the dark path, forever will it dominate your destiny.

Re:Cue the shills and apologists...

[Anonymous Coward]

Or will they not even make that token display, and simply laud Microsoft's tenacity?

Depends on how many bri... uh campaign contributions were given out and by whom.

Are you really that dumb?

[Mathinker]

> What exactly does the european patent office have to do with a US patent suit?

Do you actually believe that European witnesses shouldn't be allowed to testify in US court cases? Because that's approximately what you're saying. The EU patent office found what they believe was prior art and brought this to MS's attention. MS failed to address this in their US patent application.

reports critical of reports reportedly unreported

[Anonymous Coward]

if you can call this 'weather', it looks like we're covered with the profitsized atmostfearial holycost of our trusted rulers & deities. let 'er rip? born again, & again, to the guaranteed endless suffering of servitude to real murderous egomaniac neogods, & fictional mean streak super power invisible (spooks) 'beings'? more pageants must be in order? there's also 3rd party.gov rumours that the whore of babylon has finally been positively identified, by papers she was carrying.

the 'more important things to do' would be complete disarmament, followed by complete honesty. thanks

Standard legal practice

[Mathinker]

> They seem to be throwing everything at the wall and hoping something sticks.

This, as far as I know, is standard legal practice. It is perfectly accepted for a legal brief to have 10's of arguments, where some of the arguments assume things which other arguments claim are invalid. For example:

• Law X doesn't apply because of Y.
• Assuming that Law X applies to the situation, that means that Law Z requires filing document W which the plaintiff didn't do.
• ...

There's a certain interesting parallel to programming which covers all the corner cases.

Buy a Nook or Nook Color!

[rogerdugans]

Become a customer of Barnes and Noble.
The company deserves support- their e-readers are top-notch and their resistance to the MS Borg (You WILL be assimilated.) is good to see.

Microsoft's premiere expertise in recent years has become the generation of FUD about competitors products instead of the actual creation of anything new.
Stifling innovation is NOT supposed to be a "business model" but that really seems to be what they are about.

Anyone remember when MS used to be a software company? Yeah, I know- it was a long time ago....

Re:Buy a Nook or Nook Color!

[spiderbiten]

I have both a Nook and Nook Color The Nook is best e-reader I've used so far, love it for reading. Nook Color is a really nice little tablet. Works well for reading indoors, but I use it mostly as media player and for surfing internet. Also have a Honeycomb image on micro-sd card for when I want full Android system. Oh yeah, Nook Color can boot an alternate OS off the micro-sd slot without rooting, and while leaving the original Nook OS intact. Highly recommend both devices.

MS is turning into SCO

[Anonymous Coward]

They're slowly drifting into becoming a fullfledged patent troll.

Re:MS is turning into SCO

[erroneus]

Yes because Microsoft has learned from SCO's success on the matter. Okay, so SCO was asserting copyrights (which they did not have) and claiming evidence (which they did not have). This is different -- it's software patents or "on the internet" patents.

The Big Hand of Google?

[C0L0PH0N]

I have no inside information, but given that (1) Google developed Android, (2) that Google is REALLY BIG, and (3), that Google is being sued by Oracle for infringing Java in Android (ie, an attack on Android), I can't help but wonder if Google isn't providing assistance and moral support to B&N, in the B&N defense of Android. I don't even know if that would be legal, but I think it is interesting that Google is the 800 lb gorilla in the picture, and I haven't read (or I missed it) a peep about that possible connection. It will be interesting to see if support from Google is possible, and if it plays a role in resolving this issue.

Re:The Big Hand of Google?

[rkhalloran]

>> I can't help but wonder if Google isn't providing assistance and moral support to B&N, in the B&N defense of Android.

I'd chalk it up as something simpler: the dead-tree book market is imploding, B&N is trying to compete with Kindle by offering the Nook, and suddenly here comes MS wanting a cut off the top for claimed violations of dubious patents. B&N is refusing to take the hit on their declining bottom line just to satisfy a patent troll.

Of course, MS hasn't shown the spine to date to just go ahead and file against the Googleplex; they're going after the handset/tablet/e-reader makers instead because they figure they'll have a better chance of them rolling over and paying the danegeld. Nice to see B&N refusing to play the game.

SCOX(Q) DELENDA EST!!

Re:The Big Hand of Google?

[hazydave]

MS may not want to go directly after Google. But not just because Google has huge cash reserves, their own legal staff, and less love for Microsoft than most companies MS goes after. But as well, Google doesn't really make hardware.

The whole loophole by which software patents were made "legal" in the 80s was the idea that the simple fact of software being part of a hardware system was not sufficient to invalidate the patentability of the whole system. This sort of makes sense... here's my system. The PTO had previously held that if this black box contained hardware (electronics, mechanicals) that was ok, but if I were to replace that box with something that also contained software, it couldn't be patented. Anyway, that's the essence of how all these software patents started being issued.

So, in order to maintain this loophole, it's not the software alone that violates a patent. You can't go after Google for developing the software, because alone, that software doesn't do anything ... it's just a document. The software causes some piece of hardware to actually violate the patent. So that's who Microsoft goes after... it's an easier case, and there are more royalties to be had. And, of course, if their real purpose is to spread FUD about Android, they don't even have to care about royalties. They just want to frighten the next guy away from using Android or Linux.

The complaint sounds like SOP patent litigation

[erroneus]

All of the complaints listed more or less sound like the complaints often repeated everywhere when it comes to using patents as an offensive weapon. The complaints are also quite general. I seriously hope something good comes out of it, but I don't expect it. My initial reaction was "yeah, you are describing pretty much how patent litigation goes..."

The case being made is more for patent reform and less as a defence against the actions which are, at the moment, lawful as far as I can tell.

trump would be more iconic with hair fix?

[Anonymous Coward]

could be that simple for some of us. he is like a stand-up ringmaster, ?comic? highly rated m.o.c. too, which appears to be most important when presenting bad news (more bigger wars) disguised as good news. or, is hillary really the jesus, mary & joseph we really need to pull us out of this obvious poopslide into the netherworlds we're not in, surrendering ourselves to the divinely justifiable need to control everything by use of manufactured fatal force?

Barnes & Noble: HEROES!!!

[diretalk]

This company has Heroes! Standing up to the extortions of Microsoft.

Re: The Castle Arrrrrggggghhhhhhhh

[Thing 1]

Perhaps he was dictating?

Mod parent up

[EriDay]

I was kind of thinking the same thing. I've been on the fence about a Nook, this puts me over the fence. I want to contribute to B&N's war chest.

I'm looking at a B&W model, not color.

Price asked for to license

[Alain Williams]

It would be bad enough if it was priced at a similar price as WP7 but double the price?

That is the whole point — try to make Android unattractive to consumers because it is too expensive.

I would really like to see Microsoft try to compete on the strength of its products rather than strength of its lawyers. That they don't seems to me very telling: they can't and so use lawyers to distort the market to make their inferior products attractive.

If they win this round they will be back for more and more.

Re:Price asked for to license

[Maestro4k]

If they win this round they will be back for more and more.

If history is any indication, even if they lose this round they'll be back with more and more FUD and anti-competitive behavior anyway. It's not like multiple anti-trust findings against them has stopped them yet, so why would losing this round?

Go get 'em B&N

[SengirV]

I"m loving my rooted Nook Color. B&N is handling the production of their tablet the way every company should. If you want to go nuts and brick it, go ahead. We'll be happy to sell ebooks to those who do not, and also to those who do root it.

Patent violators...

[xyourfacekillerx]

For some time around here, Slashdot user's general attitude seems to be that it's OK to violate patents. I guess that stems from the FOSS mentality, but just because you're willing to give your work away, doesn't mean you should expect everyone else to do the same. You have to allow that other people value their time and work in different ways than you value yourrs. And, just because you think it's not immoral to violate patents, doesn't mean it's immoral to enforce them. Someone steals your car, I'm sure you'll call the police.

B&N argument is terrible. Patents don't need marketed products to be valid. What about the "non-essential" features MS targets? Well, if one's product includes a feature that violates a patent, Microsoft won't claim the entire product violates it - they will say just THAT feature violates it. Unfortunately that means the product incorporating, or relying on it, can't exist without modification and compensation to MS.

Point Number 9? Microsoft and Nokia planned to enforce their patents and litigate patent violaters? Clearly that demonstratably invalidates Microsoft's right to pursue those cases. "Hey, why don't we both just start going after patent infringement cases?" That's illegal? I doubt it. Anyways, now I know, if police departments ever openly discuss intentions and PLAN to catch DUI offenders, well that's just predatory and any resulting arrests and convictions should just be dismissed.

Microsoft's brief quote was priceless. The issues isn't whether Microsft is over-doing it with the patent thing. The problem is that companies keep prompting them to litigate because companies keep infringing on their patents. If patent holders should not take legal recourse to stop such incidents, then exactly what IS the purpose of a patent, anyways?

Re:Patent violators...

[Attila Dimedici]

Point Number 9? Microsoft and Nokia planned to enforce their patents and litigate patent violaters?

It is not that they each planned to do so. It is that they agreed to each do so in order to supress competition, which makes it an antitrust violation. When two companies collude to suppress competition from a third company, it is an antitrust violation.

Re:Patent violators...

[russotto]

For some time around here, Slashdot user's general attitude seems to be that it's OK to violate patents.

Attributing a general attitude to Slashdot users is dangerous. But I think you could safely say that generally Slashdot users oppose _software_ patents; a smaller group opposes all patents. For any given patent posted here, there will be an even larger group opposed to that particular patent. Of course, if someone doesn't think a patent should exist, it's perfectly reasonable for them to believe it's OK to violate said patent.

You don't even have the "stealing" excuse with patents, no matter how valiently you try. Because if two programmers independently apply the same technique to the same problem, neither one is stealing. Not even if one of them did it first, and not even if that one filed a patent.

Re:Patent violators...

[rogerdugans]

So it is ok to gain and try to force the honoring of invalid patents?

Basically the B&N arguments seem to me to indicate that the patents SCO.. err, I mean Microsoft, are trying to have "protect" are invalid due to prior art.
Microsoft is trying to say "We have a patent on creating fire using heat, oxygen and a combustible material. If you create fire using these materials you must pay us for a license."

If others have used the same methods before you than your patent should not have been granted and it should be rendered invalid. It looks to me like that is where B&N is going with the case, and hopefully they will prevail.

Valid patents are one thing. Invalid patents gained due to a patent office that is royally screwed up are another thing entirely.

Re:Patent violators...

[twmcneil]

patents gained due to a patent office that is royally screwed up

If only it were that simple. I think what B&N is saying is that a Microsoft employee was notified on 3 separate occasions that at least one of these patents would not issue because of prior art and that employee deliberately and knowingly withheld that information from the U.S. patent examiners in violation of U.S. patent law. IANAL and all that.

Now, what if that patent was used in the er, negotiations with HTC or other companies that have agreed to pay these license fees?

I'm getting out the popcorn.

Re:Patent violators...

[Anonymous Coward]

So now that you do you tirade to promote Microsoft can you explain why this company instead to say which patent are violated to stop the violation by removing the part incriminated ask for a NDA AND Money?

You are saying that the defense of B&N is stupid. Perhaps because you don't like the fact that your company is asking money for patent that should have never been issued because of prior art or because they are obvious.

Now the things and the Microsoft method similar to Mafia are in the hand of the justice, we just have to wait who did bad regard to the law!

Re:Patent violators...

[Anonymous Coward]

The belief is not that it's ok to violate patents, it's stronger: it's that patents are immoral. You can't own slaves; the claim is similarly that you can't own ideas. Would you have defended slavery as the status quo, therefore right?

Re:Patent violators...

[phantomfive]

For some time around here, Slashdot user's general attitude seems to be that it's OK to violate patents. I guess that stems from the FOSS mentality, but just because you're willing to give your work away, doesn't mean you should expect everyone else to do the same

Really? Have you seen the quality of some of the patents? One of them is, "display a partial web page while waiting for images to load in the background." Now, you might not be a software developer, but any programming intern could have come up with that solution. It's extremely obvious. In other words, many software patents limit what we can do without providing any benefit at all to society.

In my memory, the Slashdot hatred for patents came around the time of Amazon's one-click-purchase patent. Now really, do you think buying something in one click is at all a patentable innovation? Too many lousy software patents get issued and it really is hurting the industry.

Re:Patent violators...

[VortexCortex]

For some time around here, Slashdot user's general attitude seems to be that it's OK to violate patents. I guess that stems from the FOSS mentality, but just because you're willing to give your work away, doesn't mean you should expect everyone else to do the same. You have to allow that other people value their time and work in different ways than you value yourrs. And, just because you think it's not immoral to violate patents, doesn't mean it's immoral to enforce them.

[...]

The problem is that companies keep prompting them to litigate because companies keep infringing on their patents. If patent holders should not take legal recourse to stop such incidents, then exactly what IS the purpose of a patent, anyways?

Hey, I've got a few questions about when a patent CAN be violated.

0. Is it a violation to publish the body of a patent claim publicly?
1. If not, then is it a violation of a patent to translate it to another language, say French?
2. If not, is it a violation of a patent to print it out of my computer's printer, using postscript?
3. If not, Can I put that print-out in a folder and carry it around? Can I sell a briefcase with the paper inside?
4. Is it an infringement to store and transfer the patent claim in a binary form, say PDF? (it's postscript -- the same format that was in transit to my printer)
5. Is it an infringement of a software patent to describe the claim with a different mathematical notation, publicly? 6. Is it an infringement to store that mathematic representation in a PDF binary, on a public website? 7. Is it an infringement to translate the public patent claim into JavaScript or C in my head? By hand, w/ pen on paper? On a typewriter? In a digital word processor, in a Hex editor?
8. Is it an infringement to translate the public patent claim by hand, into assembly language in any of those mediums?
9. Is it an infringement to translate the public patent claim by hand, into machine code in any of those mediums?
10. If it's not an infringement to use computer software or a printer to translate the claim into a PDF/post script, for output in a different medium, like say paper? Can I not also use a computer to output the hex machine code as a binary file?
11. If that's not infringing, can I not also simply use a macro to perform some of the claim to math to C to machine code translations?
12. Can I not simply use many macros to translate all of the math into a PDF or binary machine code representation?

So... Here's some open source software -- It's basically just restating your patent claims, but in a better, more specific and strictly structured form... Here, I've also translated it into a few languages so your patent is now understandable in German, Japanese, French, and x86 CPU.

I'm having a hard time finding where any open source distribution or binary executable distribution CAN be infringing your patent if printing the patent claim itself from the USPTO website is not infringing the patent...

Interestingly enough, software patents claim a Method, and Apparatus for performing the said method -- Without the Apparatus -- with just the source code -- the patent CAN NOT be infringed... Claim == Math == Source Code == Binary. All just language translations that describe your patent claim to different entities: Mathematicians, Programmers, Computers (or machine level programmers -- like me, I write compilers).

You actually have to run the binary in order to "create" the "machine" that applies the Method to the Apparatus.

Ergo, FOSS code is untouchable. It's just a restatement of a patent claim. Device manufacturers get sued because they place the binary patent claim in a machine, and sell that -- But isn't that the same as me selling a briefcase with the patent printout inside? The only ones that are infringing the patents are the actual end users, and yet they NEVER get sued by MS.... that would look bad, very bad.... Current Software patent enforcement polices are BOGUS.

Re:Patent violators...

[jbengt]

Patents don't need marketed products to be valid. What about the "non-essential" features MS targets? Well, if one's product includes a feature that violates a patent, Microsoft won't claim the entire product violates it - they will say just THAT feature violates it. Unfortunately that means the product incorporating, or relying on it, can't exist without modification and compensation to MS.

B&N is not arguing that non-essential features are not covered by patents. They are arguing that the patents are trivial and therefore not valid, that the Nook doesn't use those features, that MS charging twice as much for a non-essential feature than it does for the entire WP7 operating system is evidence that it is illegally trying to destroy its' competition, and that MS failed in its' duty to disclose to the USPTO prior art that it knew about, among other things.

Re:Patent violators...

[hazydave]

Yes... software itself is just a document. You need a machine to actually violate the patent. That's why MS is going after B&N, not Google. Well, that, and Google's cash reserves, I rekon.

Re:Patent violators...

[lpq]

What is the purpose of a patent?

To encourage *innovation* -- not lawsuits.

Re:Patent violators...

[VortexCortex]

Yes... software itself is just a document. You need a machine to actually violate the patent. That's why MS is going after B&N, not Google. Well, that, and Google's cash reserves, I rekon.

Yes, but as a document, in a machine, powered down, software is just sitting there -- it is not the method and apparatus combined any more than a briefcase is an apparatus for the paper printout.

Look... A PDF of the Android source code sitting in my NAS (which has a CPU, and is a machine) does not infringe the patent. Turning off the NAS doesn't make the PDF bits go away.... Storing the binary executables on my NAS isn't an infringement since it doesn't execute the code... If I change the firmware of the NAS to enable it to execute the Android binary files that are stored on it, but leave it powered off -- I'm not infringing any patents... No "use" has occurred of any patented software at this point. At this point I can sell my NAS, and I haven't infringed any software patents. I've just put bits in digital storage, in a machine. The person I sold the "Android NAS" to, can wipe the disks, put BSD on it, or fill it with porn -- so long as they don't turn it on and execute the Android binary no one COULD have violated a patent.

However, if the person I sold the NAS to turns on the machine and runs the Android binaries, then they MIGHT have infringed any patents that could be infringed -- But only if the machine processes the section of code that the patent covers.

A tablet and/or smart phone is just a general purpose machine that has some bits inside it. You have to turn it on, AND execute the section of machine code that the patent claim covers in order to violate said patent.

The general purpose computer mfgr, doesn't infringe any software patents. The software writer or bit storage system can't infringe any patents because the data is just data -- no machine.

Device manufacturers don't sell the device turned on... Since, it's not running at the point of sale, from the mfgr, the smart phone / tablet is just a bit storage device like a USB flash memory drive. It's not infringing to store the PDF, printout, or binary data and transmit it via network or flash drive or hard disk drive, or briefcase.

Device retailer outlets sometimes turn the machines on, but they don't have to -- They can install a SIM card and hand you the device --- YOU, the END USER, are the real infringer of any patents. Only the end user "creates" the "machine" that could infringe a patent, by using the "method and apparatus" together.

Thus, it makes no sense to sue chip / hardware mfgrs for source code infringement because any OS could run on that hardware, not just the "infringing" OS. It makes no sense to sue software developers since they just produce the documents in various flavors that may or may not describe a system similar to a patent claim. It makes no sense to sue the distributors since they simply put the files in a storage medium, and sell you the digital briefcase. It ONLY makes sense to sue the end users for software patent infringement.

If suing the device manufacturers is a good idea, then MS should sue Toshiba for selling me a Windows 7 laptop that I wiped clean and installed Linux on... But, that's retarded. Toshiba didn't put Linux on the machine, I did. If suing retailers is a good idea, then MS should sue John's Electronics -- I installed Linux on a hard drive, then returned it for a larger drive the next day -- they resell returned items at a discount (and charge a restocking fee). Ergo, they have sold a machine (hard drive) with Linux on it.... But that's retarded, storage can't infringe a software patent.

The only thing that makes sense is for MS to sue ME! I'm the one USING the alleged infringing "method and apparatus" Good luck with that -- MS Knows they can't do that, it would stain their reputation too badly.

It would be pretty simple for everyone to avoid the whole p

Yes, but that's exactly the right thing

[Anonymous Coward]

Get people moving about this. There's no other way to get laws changed. Public indignation is the first step and I thank B&N for contributing to that!

Patents point

[Anonymous Coward]

"Microsoft intends to utilize its patents to control the activities of and extract fees from ..." Thats what patents are for... So what is new?

Overrated?

[drinkypoo]

I must be on the right track.

Mod me down, and I will get more attention than you can possible imagine.

Re:Overrated?

[Anonymous Coward]

Maybe because your range of choices was "bad" and "unabashedly bad", making it seem as if it was JOB- related. You know, Just Obama Bashing.

Microsoft vs. i4 / Microsoft vs. B&N

[Anonymous Coward]

They don't want to pay i4 for their infringement, but are demanding the same from Barnes and Noble. What hypocrites! Can Barnes and Noble do any friend of the court filings in the i4 case?

Re: The Castle Arrrrrggggghhhhhhhh

[Gilmoure]

* golf clap *

Parallels?

[B33RM17]

Is it just me, or could B&N's position on this be applied to the current Apple v. Samsung case?
Say, just replace all instances of Microsoft with Apple?

I know, I know, they're not the same issue in each case.
But the two sometimes act eerily similar when it comes to dealing with Android...

Could they be *dun dun dun* colluding??? :-P

section 11 of the complaint document -(Nook Color)

[Locutus]

I knew it was about protecting the Windows PC OS. You know, where so much of their profits come from they can afford to lose billions annually on things like WP7, Windows Mobile, MSN, BING, etc.

http://www.groklaw.net/article.php?story=20110427052238659

"Microsoft demanded an exorbitant royalty (on a per device basis) for a license to its patent portfolio for the NookTM 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."

Standard legal suit response

[Algae_94]

Well I hope that Microsoft doesn't win this case, but this is really a non story.

News flash! People on both sides of a legal case have their differing opinions.

It takes a book company

[cwgmpls]

It took a book company, not a electronics company, to point out how absurd patents for electronic information technology are.

Hayes, did you mean this?

[Meski]

+++
ath0

Re: The Castle Arrrrrggggghhhhhhhh

[Hognoxious]

Perhaps he was dictating?

I invoke Godwin's law!

Cannot get away from MS bullsh*t

[Douglas Goodall]

OK, I bought a Mac (and love it), I bought an iPhone 4(and love it). I am watching android and think the day will come when I want to begin programming for it. Microsoft(SCO) has tried repeatedly to kill Linux, and now they want to kill android(sort of like linux for devices). They (Microsoft) are committed to this "Windows everywhere" thing, which any reasonable person should see as a grandiose goal of a megalomaniacal company. In my opinion, no single company should have their software in everything (especially a company with bug-ridden software). It creates too big of a danger should something generic go wrong, as we have seen with Windows (all versions) and Office(all versions)...

van halen

[Anonymous Coward]

This brings to mind a quote I once heard from (former Van Halen frontman) David Lee Roth: When asked how you know when you've "made it," Roth responded: "When you can spell 'subpoena' without thinking about it." The abundance of copyright and patent litigation volleyed against Android is testimony to its success. Time will tell whether or not it will be able to survive the onslaught.

The Patent Troll Strikes Back

[Anonymous Coward]

Guess what a Patent Troll becomes when he patents an industry! A monopoly. Big, hairy, and ugly to all those that are not like it.