B&N Pummels Microsoft Patent Claims With Prior Art

itwbennett writes "As Slashdot readers will recall, Barnes & Noble is being particularly noisy about the patents Microsoft is leveraging against the Nook. Now the bookseller has filed a supplemental notice of prior art that contains a 43-page list of examples it believes counters Microsoft's claim that Nook violates five of Microsoft's patents. 'The list of prior art for the five patents that Microsoft claims the Nook infringes is very much a walk down memory lane,' says Brian Proffitt. 'The first group of prior art evidence presented by Barnes & Noble for U.S. Patent No. 5,778,372 alone lists 172 pieces of prior art' and 'made reference to a lot of technology and people from the early days of the public Internet... like Mosaic, the NCSA, and (I kid you not) the Arena web browser. The list was like old home week for the early World Wide Web.'"

Comments

Why did everyone else pay?

[oic0]

If it was this easy to beat them and the prior art was that apparent, why did everyone else bow down and pay to troll his toll?

Re:Why did everyone else pay?

[HarrySquatter]

Yeah because companies like Samsung and HTC never stand up to patent bullying. Oh wait, they do (see Apple countersuits).

Re:Why did everyone else pay?

[SomePgmr]

Someone else suggested it's because they're handset makers that also have WinMo devices (or expect to, at some point).

B&N, otoh, wouldn't care. They're not in the business of making phones.

Though I admit that's a bit conspiratorial. And you'd think Google would've fired first...?

Re:Why did everyone else pay?

[Anonymous Coward]

The first software developer that can succesfully parse a software patent has not yet been born (nor written).

Re:Why did everyone else pay?

[oakgrove]

Sure its possible but then again, what isn't? I hope they bring whatever they have. Barnes and Nobles' lawyers are blowing holes through the current ones like a crackhead chihuahua with a Gattling gun. Send more so we can either invalidate or code around those too. The last thing MS wants is real transparency.

Re:Why did everyone else pay?

[bluefoxlucid]

The problem is if B&N wins, then everyone else who has had these bandied at them has a countersuit to recover the costs already paid under false pretenses. If MS brings NEW patents, then people will be inclined to look for prior art because fuck, it worked for B&N.

Re:Why did everyone else pay?

[poetmatt]

Doesn't matter.

This is public, not under seal. This will have effects that reach far, far beyond this single case.

The strongest patents Microsoft can bring to bear would also suddenly become their biggest and dumbest decision. Why?

Can you imagine how much effort would be dedicated to invalidating them? Hint: a lot.

Re:Why did everyone else pay?

[c 0xFF]

Good news! If I'm reading Groklaw correctly, Google's starting to get involved.

I think the reason Google hasn't really been involved before is because Microsoft hasn't been attacking them directly. And because companies have just been rolling over, Google hasn't had a chance to back anybody up.

Google will become involved now that someone is planting their feet, hopefully.

Re:Why did everyone else pay?

[c 0xFF]

Maybe a partnership between B&N and Google Books?

Re:Why did everyone else pay?

[icebike]

I suspect in large part because most companies' lawyers basically tell them "Paying the licensing fee is cheaper and surer means to an end than fighting." So far as I can tell, it basically amounts to a vast conspiracy of legal departments on both sides of the fence.

Also a possible reason is that B&N is a US company and could go directly after Microsoft in a court of its choice. HTC, Samsung, et al may have subsidiaries here but they are headquartered elsewhere and can't directly access US courts as easily.

Re:Why did everyone else pay?

[hedwards]

No that's not how they work. Right now those patents are valid and enforceable, B&N is challenging them, but until they're declared to be invalid any settlements are legitimate. The USPTO decides whom to grant patents to and as long as MS owns those patents that the USPTO granted they can't be sued for using them to get settlements.

Re:Why did everyone else pay?

[icebike]

Right, because $5 extra dollars on a $200+ purchase makes it "prohibitively expensive".

Citation needed.
Nobody has yet stated the actual cost per handset.

Mostly because Microsoft stipulates in contract that they must NOT reveal EITHER the patents they are licensing
OR the actual dollar value.

The second part is par for the course, but refusing to allow the licensees to specify EXACTLY which patents they
are licensing is very very suspect.

Re:First post!

[GameboyRMH]

That would definitely change things. The meaning of "First Post!" would change to something more like "Ha ha, you gotta pay royalties!"

Bill Gates, visionary

[ackthpt]

Much was made of Bill Gates failure to recognise the prominent role the Web would play when he rolled out his book(!) The Road Ahead. Not to surprised the company seems to go around blinkered. Though much of the IP they're claiming is not used for visionary purposes, as this assault on Android illustrates, it's venal.

Fraud

[the eric conspiracy]

I find it inconceivable that Microsoft's technologists did not know of this prior art. Since patent law requires that prior art be disclosed at the time the patent application is filed, and not doing so is a violation of law sometimes turned patent fraud, I think the DOJ should go after these rat bastards for these violations.

Re:Fraud

[MozeeToby]

Yeah, except workers at the patent office have been explicitly told that it is not their job to look at prior art, that it is up to the courts to decide. This was largely in an effort to get through their enormous backlog more quickly, but any idiot could have seen that it was going to lead to abuse. Incidentally, if you're an engineer looking for a good job, I know when I graduated USPTO was recruiting heavily, they'd even put you through law school if you specialized in patent law.

Re:Fraud

[WindBourne]

Yeah, except workers at the patent office have been explicitly told that it is not their job to look at prior art, that it is up to the courts to decide. This was largely in an effort to get through their enormous backlog more quickly, but any idiot could have seen that it was going to lead to abuse.

Holy crap. That explains what I am seeing. In one patent that I will have to fight against, the diagrams were of something that was sold back in the 60-70's. You could tell that she had seen it and simply put it down as a patent. For the life of me, I could not image how ANYBODY would pass that, unless they had never seen it themselves (which was impossible since many homes had this). And in each of these cases, I saw that the engineers were likely foreign raised (china specifically). But an order like that, would make as much sense as well.

Thank you for the information. But what a fucking PITA. Now, I will have to deal with GD lawyers and courts. That is in NOBODY best interest.

Re:Fraud

[The Great Pretender]

I was having a similar conversation with one of our Patent Attorney's the other day. We wanted to file something, but the landscape analysis deemed there may be prior art. His advice, don't worry about it, it'll cost more for someone to challenge and highly unlikely that they'll waste their time. Sadly, we went ahead and filed and didn't worry about it, contrary to my request for a better legal opinion.

Why were other companies so lazy?

[HigH5]

Why on Earth nobody else had the guts to stand up against MS if prior art seems to be so easy to find?

Perfect move by B&N

[future assassin]

Looks like they did their homework and so did their lawers. Even if they were not to win this is a HUGE way to attract customers to their hardware/online stores especially when they win. You couldn't get a more massive good will gesture then this especially before christmas shopping holiday.

What about the others?

[WindBourne]

This will sound dumb, but what about the other companies that cut deals with MS? Can they back out of it and sue MS? It would be interesting to see law suits started against MS again, but this time, make it in multiple nations.

Why isn't B&N in Europe?

[AftanGustur]

My wife wants a e-reader and when I saw what the new B&N Nook Reader can do I wanted to buy two. But it appears that B&N doesn't do business in Europe..

So, sorry B&N, you would have gotten 2 new customers if you would just sell your books and stuff to Europe.

Re:There is more, no MS license

[Junta]

But basically, B&N has nothing to loose. If they loose they have to pay the same fee as if they didn't. It is not as if MS can hurt them in any other way.

Well, they do have something to lose. If they lose, Microsoft will seek a more drastic action. I think the assumption is they feel confident they can win, and if other companies reached the same conclusion that they could 'win' in court, they would still 'lose' on their business relationship.

For Those Interested In The Product

[hercubus]

The Nook Tablet (unrooted) is slightly more open than the Kindle Fire (unrooted)

Some links:

• side-loading apps to the Nook Tablet
• lightweight comparison
• slightly better comparison

My takeaway is if you have your gold geek card, get the Fire (less money) and root it. If you're less adventuresome, get the Nook for more openness, but get an micro-SD card or you're stuck with only 1GB of free memory.

Re:Follow up should be

[walterbyrd]

for MSFT this really is a "heads I win, tails you lose' situation

Unless msft gets sued back. Google shareholders just voted to allow Google to aquire Motorola Mobility. That will give Google a nice patent arsenal.

It's possible that Google (and others) are getting fed up with msft's patent-parasite attacks on Android. Paybacks can be a bitch.

Re:Will that still be true?

[Anonymous Coward]

Well, Apple's drift from "make a new and better product" to "refresh an old product, sue competition to gain market share" approximately correlates with Steve's health declining.

Not saying Jobs was a saint, but it'll probably get only worse.