Slashdot Mirror
ITC Throws Out B&N Antitrust Claims Against MS
N!NJA writes with an excerpt from a post by Florian Mueller: "Barnes & Noble's primary line of defense against Microsoft's allegations of patent infringement by the bookseller's Android-based devices has collapsed in its entirety. An Administrative Law Judge at the ITC today granted a Microsoft motion to dismiss, even ahead of the evidentiary trial that will start next Monday (February 6), Barnes & Noble's 'patent misuse' defense against Microsoft. [...] Prior to the ALJ, the ITC staff — or more precisely, the Office of Unfair Import Investigations (OUII), which participates in many investigations as a third party representing the public interest — already supported Microsoft's motion all the way. The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense."
Good thing Mr Gates decided to start investing in DC Lobbying infrastructure after the first round of anti-trust charges. Sure it costs millions of dollars a year, but think of all the abuses you can muster!!!
People still take this guy seriously?
"I do not agree with what you say, but I will defend to the death your right to say it"
The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense. For example, Barnes & Noble claimed that Microsoft asked for excessively high patent license fees, but the OUII quoted passages from U.S. law (statutory as well as case law) that clearly said that patent law doesn't require a patent holder to grant a license on any terms.
So, basically, it was game over before it got started.
It's not about creation anymore.
It's all about owning segments of possible creation.
And those have been mostly divvied up, given the ridiculously broad areas of thought and ideas that we allow to be patented.
Check your premises.
The Microsoft-created features protected by the patents infringed by the Nook and Nook Color tablet are core to the user experience. For example, the patents we asserted today protect innovations that:
* Give people easy ways to navigate through information provided by their device apps via a separate control window with tabs;
* Enable display of a webpage’s content before the background image is received, allowing users to interact with the page faster;
* Allow apps to superimpose download status on top of the downloading content;
* Permit users to easily select text in a document and adjust that selection; and
* Provide users the ability to annotate text without changing the underlying document.
Microsoft obviously thinks this is pretty advanced stuff. Adjust a text selection? Annotate a document? Tabbed controls? Woah. No wonder they want $30 per device (more than the cost of licensing WP7!).
Didn't people see this coming? Google chose Apache 2.0 for their reasons and goals for Android
http://source.android.com/source/licenses.html
"We've simply decided that ASL2.0 is the right license for our goals."
The tablet bubble is already bursting but maybe bodhilinux or similar will be used for some future consumer applicances to avoid these probelms?
http://bodhilinux.com/
Quidquid latine dictum sit altum viditur
Android also faces serious patent issues from Apple. After Apple demolishes Samsung, Motorola and HTC they may try to squash the fringe players like B&N.
Unlike Apple, MS has at least offered reasonable royalty terms to Android manufacturers. So spread your hatred around a little.
... and it's not a tax.
Rather, Microsoft is a medieval style guild, and they collect dues from any who would practice their trade. If you don't pay, they come and burn down our house.
And it goes way, way deeper than any "shortcuts". To put it another way, if we were talking about mechanical and structural engineering, not only would MS hold the rights to be the sole bridge builders in the land, but the very concept of a device or structure to facilitate the crossing of a body of water would be theirs. They'd own the rights to cables, supports, bolts; not only to steel but to alloys in general.
With our technology, there is nothing that doesn't stand on the shoulders of those who have gone before at this point. We should still be in a rapid development cycle, spinning upward. Instead, we squabble over who gets to build anything at all.
And eventually, we're going to absolutely destroy American technological innovation. First, by making it impossible for most everyone but the established players to build anything at all. And by doing so, we will lay the groundwork for the first other nation to surpass us to absolutely ensure that we are subject to the very idiotic laws that we are using to choke our own innovation.
Check your premises.
Fact is that software systems other than Microsoft's run most devices available. BusyBox rules the roost, Android has a huge portable devices market and the rest of the know universe belongs to Apple with a smattering of odd ball stuff like Symbian. The United States patent office has been subverted by companies like Microsoft and the rest of the world is now becoming the source for real product innovation.
Plain and simple the whole concept of an economy based more on IP than real products has backfired. The statements coming out of Washington about how IP has to be protected at all cost and how American "innovations" are more valuable than real products has led to this sad state of affairs.
The rest of the world could care less, America is being miss lead by corporate junkies like Steve Ballmer and the economy is going to go down the tank because of corporations like Microsoft and the failure and shameful decline of real industrial innovation, education and leadership within the United States.
Microsoft obviously thinks this is pretty advanced stuff. Adjust a text selection? Annotate a document? Tabbed controls? Woah. No wonder they want $30 per device (more than the cost of licensing WP7!).
I really wish 'obvious' were a common defense in patent fights, because so many patents ARE obvious.
But as far as I know, no patent case has ever been one because the patent was obvious. One-click-purchasing is still patented by Amazon, even after a LOT of fighting.
"First they came for the slanderers and i said nothing."
Resistance is irrelevant. You will be copyrighted. Public domain is irrelevant. COPYRIGHT COPYRIGHT COPYRIGHT
What happens when you cross the Borg with the Dalaks. You get "patent trolls".
I think I'll wait and see what Groklaw says about this - since it is now run by an actual IP lawyer (Mark Webbink of RedHat), I think they are *very* much qualified, far moreso than Mr. Mueller. Not that PJ was un-qualified at all - her research as a paralegal is world-class. And since she too works in the legal industry I'm sure she is also far more qualified than Mr. Mueller.
C|N>K
I'm sure we're all so surprised.
"Ahh! I see you're in that indeterminate Schrodinger state where - oh, uh
This won't hurt B&N that much. Mainly they already have letters rogatory and subpoenas pending against MOSAID and Steven Elop. Looks like they're gonna have to speak up and tell what the deal is after all.
C|N>K
So the antitrust claims failed ... how about charging them with extortion?
And here's what an actual freakin IP attorney thinks. I remember when Mueller got backed into a corner on that site a while back - he was *way* out of his depth even with amateurs.
C|N>K
How do you know the patent license costs more than a WP7 license? It seems unlikely, considering that WP7 phones don't deliver nearly as good hardware for the money, compared to Androids.
Seriously; we need a way to keep track of the personal finances of everyone ruling against FOSS with no real, valid reason given. From junior patent examiners to international jurists; are they and their families living beyond their means with no honest, visible means of support.
This needs to be the real Obviousness Test.
before making any assumptions:
Lots more here.
In order:
Nook doesn't have any real notion of windows. It's a tablet-based OS.
Nook doesn't support background images except in the browser. And in that case, I'm pretty sure Netscape has prior art. Unfortunately, none of the sites talking about these patents seem to post the full patent numbers, so all we can really do is speculate.
So they have a patent on showing the status bar in a different place on the screen? Because there is no functional difference in the way such a bar is drawn, any such patent, if it is not a design patent, should be ruled invalid. If it is a design patent... well, then they'll just have to change their design so that it doesn't do that.
No idea if there is prior art without seeing the patent number.
I have a hard time believing Adobe doesn't have patents that are prior art....
Check out my sci-fi/humor trilogy at PatriotsBooks.
They may not need to, given that both Amazon and Apple provide tools for publishing books on their platform, and Barnes & Noble don't. B&N are circling the drain right now, and this lawsuit is a last-ditch measure to try and stay solvent. (They're trying to undercut the competition by not licensing the patents.)
Right now, B&N have a crappy ereader (the Kindle is vastly superior, their tablet version tanked), a crappy online bookstore (Amazon has millions of titles, B&N has an order of magnitude less, Apple won't say but allows self-publishing which B&N doesn't), and a large number of physical stores (that are slowly becoming more "bad Apple store clones" than bookstores in that they contain a large "Nook version of an Apple Store" near the entrance, rather than, well, books).
But given that Barnes & Noble's two largest competitors are, in fact, Amazon and Apple, it would not surprise me at all to see Apple immediately bring legal action should Microsoft fail to kill Barnes & Noble on their own.
I really wish 'obvious' were a common defense in patent fights, because so many patents ARE obvious.
Obviousness is not a court defense. The patent office itself is supposed to reject obvious patents in the first place instead of issuing them (they're dicks, or stupid).
Once a patent is granted, it's too late. The best you can do is try to force the patent office to reassess the patent (Great, have the cockbites who granted it double check their own work) and hope that they reject it correctly the second time around.
You retard. The Kindle isn't "vastly superior". It's actually fairly useless because it can't even read epub. The hardware and screen are pretty much the same.
Go read ereader reviews. They always say: Kindle is the best, then there's iBooks if you're swimming in money, then there's the Nook is you're too stupid to realize it's more expensive than the Kindle.
It's actually fairly useless because it can't even read epub.
And the Nook can? It only reads books from the Barnes & Noble store, they removed the ability to "side load" stuff a while ago. Besides, the defacto standard is MOBI, to the extent that Apple had to create a tool to make books in whatever format they use. No one knows what an "epub" is, but people know what an iBook or a MOBI is.
It was in the Barnes and Noble court filing, they said MS wanted more money per device for "Linux patent protection" than they charge to license WP7. I think the exact amounts got redacted in the court filings though.
Agreed, The Nook ereader is very good and is more open in formats. The comment about B&N a order of magnitude less is also false, B&N claim over 1 million nook books for sale as well on their website.
Well, it beats rounded corners.
See PJ's comment on Groklaw. Covers it pretty well.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
Jeff? Is that you?
This is slick PR, but completely inaccurate. B&N's tablet, their service, their brick-and-morter presence are all major advantages of "I own the one-click ordering" Amazon. Apple is a technology company, so they are not B&N competitors. The Nook tablet is awesome, BTW, but they should really back off on the lock-down if they want to sell more.
B&N also is NOT a publishing company - they are a book retailer. There is no need or reason for them to "provide tools for publishing books" - other people do that, and the B&N Nook supports those formats. And some of those tools allow you to actually control your work, unlike Apple's tool that takes ownership of your entire publishing and marketing chain just for using their tool.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
They do make more money licensing Android patents than they do from WP7 licenses. It's right there in their corporate reports.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
USPTO *used* to set a pretty high bar for obvious improvments, modifications and "innovations", using the notion that "one practiced in the arts..." (i.e. experts in the field), could, would and have easily arrived at the same solutions, tricks and modifications. Some of these "protected innovations" are obviously ridiculous and trivial to "one practiced in the arts...", like: ... please... what does yellow highlighter do, nevermind just scribbling on a printout of a doc while retaining the original copy... sheesh... Does Adobe pay MS for their annotation features in Acrobat?
... again, easy selection??? been doing it for years with mice, with EMACs marking functions, etc.
... quite sure Netscape did this at least 15 years ago or earlier... and simply starting to display before download is finished? (one practiced in the arts... obvious and trivial).
* Provide users the ability to annotate text without changing the underlying document.
* Permit users to easily select text in a document and adjust that selection.
* Enable display of a webpage’s content before the background image is received, allowing users to interact with the page faster.
Go read ereader reviews. They always say: Kindle is the best
Reviews usually say they're about even.
then there's the Nook is you're too stupid to realize it's more expensive than the Kindle.
The Nook touch is $99 as is the Kindle. The Kindle is only $99 now because it's the version that shows you ads. Without ads it was still $139. They don't even seem to be selling it without ads anymore.
And the Nook can? It only reads books from the Barnes & Noble store, they removed the ability to "side load" stuff a while ago.
It comes with a usb cable. Plug it in and drag the file to it.
Besides, the defacto standard is MOBI, to the extent that Apple had to create a tool to make books in whatever format they use.
From wikipedia:
The EPUB format is rapidly gaining popularity and as of 2011 is the most widely supported vendor-independent XML-based e-book format.
Isn't the Kindle the only ereader that doesn't support it? Apple choosing a proprietary format isn't surprising. Not sure why you think that makes the format superior. Apple makes a lot of choices that are harmful to consumers.
No one knows what an "epub" is, but people know what an iBook or a MOBI is.
Who cares what people know or don't know. People are stupid. What you should care about is that Amazon refuses to support open formats.
Please - Why is this even on slashdot. At least wait until its reported on by a RELIABLE and intelligent source before you post it. Last thing I want to read over breakfast is crap by Mueller. Fortunately I had read other sites first so I had the facts already but does slashdot want to lose credibility ???? The ruling might be news but this linking ISNT !
You're full of it. I have a Nook Color and an iPad2, and the Nook is way better for *reading*. The iPad is OK, but after a while it is much more pleasant to hold a device that is the size of an ordinary book, rather than one with the dimensions of a thin textbook. Also, the Nook has a higher pixel density, so the the text looks noticeably more clear.
Also, it is very easy to put epub files from e.g. Project Gutenberg onto the Nook. You just plug the usb cord into any desktop or laptop computer, and it appears as a filesystem. Most of what I read on my Nook Color is from PG. However, you can't just go to the PG website with the Nook's browser, download the epub files, and have them appear alongside your other books from B&N, because the downloads don't wind up in the right place and the Nook itself doesn't have any sort of file manager.
N.B. - it is possible that the new Nook Tablet won't easily read third-party epubs. They did change some things for the worse, including disabling booting from the SD card which made it so easy and risk-free to try a standard Android system on the Color.
Surprisingly, I actually found the annotations one to be kinda novel.
Your example of using a yellow highlighter DOES change the document, as does scribbling on it. Making a copy and marking that up is still marking up right in the full document. I'm not familiar enough with Acrobat's annotations to know if it makes them in a separate file... if so, that could well be prior art.
I'm not familiar with the exact patent, nor with B&N's annotations, but I am intimately familiar with Kindle annotations. They're stored in a separate file with pointers to the positions in the file they are annotating. When I first saw that, I really liked the idea. In hindsight, it seems kinda obvious, but the straight forward approach would have been appending the annotations to the end of the file or embedding them in the file (ex. as html div tagged data with a custom css class that displays that text differently).
Storing annotations outside the doc is actually a bit more complex in rendering and such, but it's awesome to be able to delete a book/file and keep the annotations... and they come right back if you download the book again (cause they were never gone). It's also great in that the book file keeps the same content, so deduping will still work on it if stored on a server, for instance. Sharing annotations is easier this way as well, as you don't have to extract them from the file or send the whole book.
That said, software patents should never be allowed. But, in a world that does allow them, this one seems to have some teeth to it. On face value, the others are all ridiculous.
That doesn't answer the question. Android has more than 20x WP7's market share.
Well I can't speak for the OP - and I haven't heard the $30 figure before. If it's true, it's about double the per-device cost of WP7, which is about $15 (for HTC anyway). Others pay more - estimates are between $20 and $30, and ZTE (in the UK) has revealed their WP7 license is between $23 and $30.
What should strike any justice-minded person as repugnant is the entire idea that Microsoft, through legal coercion, market dominance and government sanction, can make so much money on something that they did no real productive work to earn, but obtain purely through rent-seeking. AND they actually make MORE money from that than they do their own crappy software that nobody wants.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Right now, B&N have a crappy ereader (the Kindle is vastly superior,
How so?
I tried both before getting one ( a Nook), and they were around 100% equivalent. There were some things the Kindle could do better (better battery, but the Nook's was good enough not to matter much to me, slightly better contrast, free intrusive ads), and some things the Nook could do better. It boiled down to a choice based on preference, not hardware or software. I picked the Nook because I like open standards (epub, and Overdrive), and I'd rather help B&N stay in business than help Amazon try to grab more sectors of the economy by their balls.
I live in an area with over 4 million people, and there are only 3 new bookstores remaining, B&N (who decided that bookstores should focus on toys instead of books lately), and two small independent ones. This is largely because of Amazon. I'd rather shop from any alternative than them, of late.
A patriot must always be ready to defend his country against his government. -edward abbey
iBooks
Repeat after me; "The iPad is not an ereader...". It is a tablet that can handle books (just like all the various Android tablets, or old Windows tablets), not an ereader. Ereaders aim at a completely different segment of the market. I have both, a tablet (with Kindle and Nook software), and a dedicated ereader (a Nook). I use one for reading books, and the other for wasting time on Youtube...
A patriot must always be ready to defend his country against his government. -edward abbey
You're full of shit.
Nooks mount as a mass storage device; You drag your files over, disconnect and go into the library - it'll check for new content and that's it, you're done.
IANAL, but I'm pretty sure that arguing that a patent is invalid in court is a defence against patent infringement. See here for an example where Red Hat showed prior art during trial and got a patent troll's patents invalidated. Similarly in this case, even if B&N fail to show patent misuse, they have a ton of prior art, and arguments that the patents are trivial and don't actually properly disclose the "invention". See here.
This is really just a digital version of writing on the document. Storing it in a separate file is an obvious way of implementing this feature on a digital device. Modifying the original file is another way of implementing it but these are the types of design decisions software developers deal with on a daily basis and giving patents that span multiple decades for them is absurd.
http://www.networkworld.com/community/node/79179
The numbers are listed in a table half way down.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
OK, except that I wasn't trying to make arguments about prior art. Instead I was talking about "one practiced in the arts", i.e. "innovations" that are so obvious that they should be ruled as NON-innovations that are obvious to anyone "practiced in the arts". The USPTO is supposed to throw out any patents that describe minor or obvious adaptations and improvements that any expert in the field (or anyone at all) would easily come up with.