To anyone who has been reading anything on the web over the past few months, this shouldn't come as a surprise. Barnes & Noble is currently embroiled in a patent lawsuit started by Microsoft, after the bookseller/tablet maker refused to pay protection money to Redmond. Barnes & Noble has now openly said what we already knew, and has filed an official complaint at the US Department of Justice: Microsoft is engaging in anticompetitive practices. Update: Here's the slide deck B&N presented to the DoJ.
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Member since:
2005-09-27
It holds no water, not because MS is obviously abusing it, but because if MS loss the government would be admitting that the patent system is a broken fiasco, and they won't do that, and this is because billions have been spend in building patents arsenals from rich companies. What if suddenly software patents were abolished? then all that billions wasted would go direct down the drain.
So this case will end in an arrangement out of the court or Barnes & Noble loses.
Edited 2011-11-09 16:40 UTC
Member since:2006-01-14
Hopefully you are wrong. I think B&N have a case. They are using their patents punitively to hold back Android. The fact that they are suing for different licenses than they offered to license is one issue. The fact that they are charging more for the licenses than they are for their entire Windows Phone 7 is another. Guess we will see who has the best argument.
Member since:2011-08-08
Nothing is going to come of this for two simple reasons... As Hiev already explain there's too much at stake, and B&N has a weak case regardless.
Member since:2006-08-18
No, that IS an issue. Maybe MS still has a valid case re: some patents - FINE. But if they are trolling for payments (affecting competition) for other stuff that isn´t valid, that is behavior that may very well be sanctionable. Note that other vendors have succombed to these tactics, so it is already affecting the market.
If they are charging a radically higher fee for patents vs. what they charge for WP7 which includes those and much more, there is a case for non-competitive practices because that is obviously not a level playing field, but one where they are leveraging their advantage in one ´market´ (patents) to advantage themselves in another market (OS´s). It doesn´t matter if the component actions might otherwise be legal, doing that is illegal... ESPECIALLY in the EU, even if they are using US patent law that can and obviously does affect competition within the EU.
It will be very interesting if this case goes forward, to see if the court subpoenas MS / other vendors to see what is the actual substance of what is being discussed behind NDA secrecy...
Edited 2011-11-09 19:01 UTC
Member since:2006-01-17
They request same or more per device than for same license and their own OS combined, so it's worth investigating.
MS is not very careful given that they are proven monopolist abuser. However their stake is very low in the market so it's to early to call it monopolistic.
And anyway their tactic doesn't work for now. Android phones and the iPhone sell better because of the network effect, customer familiarity, apps, and more mature platform. That counts even in the commodity market where this fee is relevant in pricing structure (WP7 is strongly targeting that market). Maybe as Nokia helps them get to more than a few % they will be able to build up a kind of ecosystem that iOS and Android have, but maybe also there's no room for another smartphone OS. Consumers will decide about it.
Member since:2006-01-06
But there's zero evidence that that's occurred. What we do know is that MS has asked Android adopters like B&N to license its patents -- and B&N apparently believes that it isn't obligated to do so. Which is fine. They can take their chances in court. But merely asserting that they don't like patents -- or that patents are anti-competitive -- is a losing argument. That's the nature of patents. They restrict competition by granting the holder a monopoly on the invention. Anybody who wants to use the invention has to license it. That's our system. My bet is that B&N settles this out of court -- or they'll get their asses handed to them.
Member since:2006-01-04
On the other hand, here is some information from an informed source (that stands in stark contrast your ideas.)
http://www.groklaw.net/article.php?story=20111111121548972
In effect, Barnes & Noble says Microsoft is doing what's it's done in the past against Netscape and Java, only now the target is Android and the weapon of choice is patents.
I also thought you'd probably have questions about how there can be an antitrust complaint over patents, since by their very nature patents are a granted monopoly, so I found some resource material for you. For me too, actually, because I was wondering about it myself.
You'll find our old friend SCO Group on page 9 of the slide presentation, by the way, on a list titled "Microsoft Infringement Suits Against Open Source Software", with an annotation: "Microsoft provided financial support to SCO, enabling it to file and litigate several infringement suits targeting open source software." And Barnes and Noble alleges that the Nokia deal included an agreement to pool and then use patents in an aggressive attack against Open Source.
The Barnes & Noble Accusations
The overview, in the slides, of Microsoft's anti-competitive behavior is the following:
Publicly Claiming Control of Android and Other Open Source Operating Systems
Requiring Potential Licensees to Enter into Overly Restrictive Non-Disclosure Agreements
Demanding Royalties Commensurate with Owning the Entire Android Operating Sysem (and Similar to Royalties for a Windows Phone License) Even Though Microsoft Only Owns Trivial Patents
Imposing Licensing Provisions Unrelated to Microsoft's Patents and Designed to Prevent Competitor Innovation
Filing Frivolous Patent Infringement Actions Against Companies That Refuse to Enter Into Anticompetitive Licensing Agreements
Deal with Nokia Includes an Agreement to Engage in a Coordinated Offense Use of Patents Against Open Source Software
Purchasing Patent Portfolios that Threaten Open Source Software
We suspected when it was announced that the deal with Nokia was about patent aggression, and now we see it in black and white. Barnes & Noble lists three deals as anti-competitive, the Nokia deal, the CPTN-Novell patent deal, and the Nortel patent deal. You can see the "trivial patents" Microsoft used in discussions with Barnes & Noble and in its later patent infringement complaint -- not an identical list -- on page 5 of the slides.
Also, the patent infringement case Microsoft filed against Barnes & Noble is ongoing in parallel with the ITC case. Barnes & Noble's answer to the complaint is smoking hot too, and you can read it here. Barnes & Noble says in the answer that "the license fees demanded by Microsoft are higher than what Microsoft charges for a license to its entire operating system designed for mobile devices, Windows Phone 7."
Essentially, they accuse Microsoft of using patents as a weapon to carry out an anti-competitive strategy, a campaign of collecting patents for the specific purpose of attacking Android, "embarking on a campaign of asserting trivial and outmoded patents against manufacturers of Android devices”. We get to look behind the curtain of secrecy now, at last.
There are links to pertinent documents and more information as well.
Member since:2006-01-04
Barnes & Noble subpoenas Nokia over Microsoft Android lawsuit
http://computerworld.co.nz/news.nsf/telecommunications/barnes-noble...
Barnes & Noble is keen to showcase the patent-sharing arrangement between Nokia and Mosaid to support this accusation. Last month, Barnes & Noble subpoenaed both Nokia and Mosaid for a broad list of documents and information.
"The requested information will demonstrate that Microsoft is broadening its patent portfolio as part of its campaign to use minor patents to suppress competition from Android and protect its monopoly in PC operating systems," Barnes & Noble's lawyers wrote in documents filed with the USITC.
Member since:2007-09-06
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Member since:2006-01-06
It doesn't matter whether MS is "using their patents punitively to hold back Android." That's the nature of patents. They grant the holder an exclusive monopoly on a particular invention for a limited period of time, in exchange for making the invention public.
Member since:2010-06-01
And thats why MS put those patent licenses behind NDA?
For me patent agreements with NDA should be baned, to fulfil "for releasing the to public knowledge". But that not the biggest USA patent system. (And I think that ANY patent system is by definition pile of lies, misunderstandings, and wishful thinking, all bad things you very, very do NOT want in your legal system).
Member since:2006-01-06
For me patent agreements with NDA should be baned, to fulfil "for releasing the to public knowledge". But that not the biggest USA patent system. (And I think that ANY patent system is by definition pile of lies, misunderstandings, and wishful thinking, all bad things you very, very do NOT want in your legal system).
I'm not sure how that matters. The licensee knows the patents it's getting rights to, and it knows how much it's paying. I think what you're really complaining about is that YOU don't know the details; but you're not a party to the agreement.
Member since:2007-02-17
No. Firstly one is awarded a patent as a "deal" ... one is awarded the patent rights in the first place in exchange for making the invention known to the public. NDAs break that deal, and should logically result in the loss of the patent.
Secondly, the patents in question are said to be trivial and non-essential. In any "deal" there needs to be agreement between the parties. Therefore, B&N should have two options ... either license the patents from Microsoft for use in their Android devices, or remove the disputed functionality from their Android devices.
Since the patents in question are said to be trivial and non-essential, surely B&N would opt for the latter option ... just remove the contentious functions from their device. I'm sure Google would co-operate in a blink, and replace the contested functions with some entirely different implementation of the same desired effect.
So why can't they? Why can't this be done?
If the answer is that "Microsoft won't disclose what the contested functions are", then it is absolutely clear that Microsoft has not disclosed their patents to the public knowledge. So Microsoft should lose the patents.
Edited 2011-11-09 22:39 UTC
Member since:2006-01-06
You're confused. The NDA is a separate contract specifying license terms. It is not the patent, and there are very valid reasons why a company signs NDAs. It allows the company to negotiate different terms from different companies. If you think that contract law is going to be modified because you want to know the terms, I have a nice bridge for sale.
Member since:2007-02-17
Nope. In order to enjoy patent rights, Microsoft are required to disclose their "invention". Fully. To the public.
If Microsoft did that, then clearly Android would not include anything which violated those patents. It would be ripped out by Google in a microsecond, and replaced with an entirely different implementation of equivalent function(s).
This the patent deal. If B&N are happy to license stuff from Microsoft, then they should be allowed to. Sweet. Microsoft might be able to get this business by offering B&N an attractive price.
If Microsoft's inventions are too expensive to license, and the terms are too restrictive, then B&N should have the option to go elsewhere and include other, competing stuff from another vendor that works in a different way to implement the same desired effects. To facilitate this, Microsoft should make it perfectly crystal clear, to the entire public, exactly what they think they have claims over.
This is the very essence of a free market economy.
I thought you would be in favour of a free market?
Edited 2011-11-09 22:57 UTC
Member since:2006-01-06
Yeah, they're so non-essential and trivial that most Android licensees have licensed them. Seriously, dude, you're dreaming.
It's not a question of "can" versus "can't". B&N wants the functionality, but it doesn't want to license the patents. Ergo, it wants its cake and eat it, too.
That simply isn't credible. You wouldn't be seeing the wave of Android licensees signing patent license deals, if the patents weren't being disclosed.
Member since:2007-08-22
Yeah, they're so non-essential and trivial that most Android licensees have licensed them. Seriously, dude, you're dreaming. "
No, most have not. It might be getting closer to 50%, but it's mostly been dealers that don't care to fight Microsoft or think it's useless to do so. Again, B&N is standing up and saying "Hey, wait a minute. There's a problem here".
They're also saying that Microsoft won't disclose any infringement activity without an NDA in place, thereby you can't figure out what is infringing and resolve it or if they tell you you can't prevent others from doing so since the NDA prevents disclosure to 3rd parties.
It's not a question of "can" versus "can't". B&N wants the functionality, but it doesn't want to license the patents. Ergo, it wants its cake and eat it, too. "
And you've completely missed the point.
B&N is claiming that Microsoft first approached them about 6 patents, but wouldn't tell them which patents without an NDA - which B&N refused since the patents themselves are public and Android OS is public so Microsoft should be able to tell them without an NDA - unless Microsoft's goal is to extort in which case the fewer that know which patents Microsoft wants to use the better since an NDA prevents parties from talking to each other to resolve the infringing activities, but that leads to what B&N is saying to the DoJ.
When B&N refused the NDA, Microsoft later came back and they agreed to a narrower NDA; B&N then said "that's trivial stuff and you're charging too much". Microsoft sued, but then only included one of the patents that they told B&N they were infringing, and added 9 others to the list that they had not previously disclosed to B&N. Again, that's a problem as Microsoft was not being forthright with B&N about the infringing activities if indeed B&N was infringing.
That simply isn't credible. You wouldn't be seeing the wave of Android licensees signing patent license deals, if the patents weren't being disclosed. "
There's two issues here:
1. Microsoft has disclosed the patents sufficiently to get the USPTO to issue a patent. However,...
2. Software Patents are so generalized that they are useless in describing the originally patented invention and apply to stuff that should not be covered by the patent.
For example, the following claims:
1. A cylindrical object consisting of two components heretofore referred to as component A and component B that share a common width and share a seal where the two components connect to each other such that component A surrounds the one side of component B which is contained inside component A on the same plane.
2. An invention of claim 1 where component A touches a surface upon which it traverses.
3. An invention of claim 2 where component B attached to object C via a cantilever assembly.
4. The combination of two or more inventions of claim 3 attached to the same object C in order to keep object C from touching the surface aforementioned in Claim 2.
5. An invention of claim 4 where a component D is used to propel object C across the surface of Claim 2 whilst only touching the surface through the invention of claim 1.
The above describes the invention of the rimmed tire. however, it would equally apply to cars, trucks, motorcycles, bicycles, etc - regardless of whether the rim was made of metal, polycarbonate, rubber, etc; regardless of whether the tire was tubed or tubeless or made of metal, polycarbonate, etc.
It would also be struck down as invalid against the invention as a result; yet that is exactly how we allow software patents and business method patents to be written.
Member since:2009-06-21
Those negotiations are under strict NDA. If you have insider knowledge I hope you get your butt sued off. Otherwise, you have no knowledge whatsoever why any Android OEM's took licenses from MS and need to stfu.
According to the documents I've read, B&N have cited prior art for every single patent MS is attempting to assert against them. Again, you are clueless and your stupid overused metaphor doesn't apply.
Ignorant fools like you are a pox to civil discussion.
Edited 2011-11-14 17:08 UTC
Member since:2007-02-17
B&N allege that Microsoft's patent claims are trivial and non-essential, and Microsoft are abusing them by charging as much or more for trivial & non-essential patents than they do for their entire WP7 OS.
So, even if this were true that patents "grant the holder an exclusive monopoly on a particular invention for a limited period of time", Microsoft have apparently still abused the patents in question because thay are non-essential to Android. If Android doesn't need them, then Microsoft should at best be able to get these non-essential elements taken out of Android. Microsoft should not be able to use trivial, non-essential patents to eliminate competition.
Patents are intended, afetr all, to promote innovation, not stifle it.
Finally, if patents are indeed awarded "in exchange for making the invention public", then Microsoft's NDA's and obfuscation of the alleged functional infringements (so that they could be removed from Android if required to be) are a clear abrogation of that bargain. On this basis alone Microsoft's patent troll behaviour should be heavily sanctioned.
Edited 2011-11-09 22:28 UTC
Member since:2006-07-04
Microsoft is offering their patents for licensing for a fee. Apple is the one that uses their patents to take competing products off the market altogether, not even bothering to offer their patent for license.
Are you and the other Google apologists now saying that it's "anti-competitive" to offer one's patents for licensing? Come off of it.
And I don't care how many uprates your lame comment got by the other Google sycophants and/or MS bashers.
BTW, the DOJ isn't going to do anything about this; there's nothing illegal in offering your patents for license, even with the threat of a private suit at the end of it. There's no monopoly-abusing goign on here. B&N are still able to use Windows on their computers at the same price that anyone else can. WHere's the case of "anti-competitive" practice? There isn't one. B&N and MS are going to have a court case to settle their differences. That court case has already been scheduled. Why bring the DOJ into it? Probably because B&N thinks they'll lose the court case.
Member since:2006-01-06
Yes, they are. Because they don't like patents (unless Google is wielding them via Motorola), and they believe that MS's patents are "trivial" (although, for some reason, they won't remove the "trivially infringing code" from Android). Someone in the pro-Google camp explain this: Why don't you simply remove the code wrt infringements that have been made public already? What's holding you back (aside from whining about other peoples' patents)? Here's my take: FAT32 and LFN, for example, are so ingrained in Android and device drivers that, in fact, the patents aren't "trivial". They're a fairly widely used pattern. But it's easier to whine than do the heavy lifting of using an alternate filesystem.
It's a ploy for sympathy. That's about it. B&N won't let this go to trial.
Edited 2011-11-11 21:07 UTC
Member since:2006-01-04
So they are just bluffing? All this work to submit information to the DoJ and subpoenaing Nokia and MOSAID is just a show that they don't even think will fool M$ but will somehow make the settlement less onerous for them.
My opinion is that your analysis in non-sightful.
Member since:2006-01-06
So they are just bluffing? All this work to submit information to the DoJ and subpoenaing Nokia and MOSAID is just a show that they don't even think will fool M$ but will somehow make the settlement less onerous for them.
My opinion is that your analysis in non-sightful. "
What they're hoping, in my opinion, is that they can somehow throw a bunch of crap against the wall -- vis a vi an antitrust case -- and make some of it stick. It's not going to work.
Member since:2011-01-26
Member since:2007-08-22
So this case will end in an arrangement out of the court or Barnes & Noble loses.
Has nothing to do with whether the entire patent system in broken. It has to do with what rights and restrictions the patent system gives to a patent owner.
In this case:
- Is Microsoft charging a non-trivial fee for a trivial patent? If so, it is patent abuse.
- Is Microsoft involved in anti-competitive tactics and in violation of the Sherman Act?
FYI - Microsoft has already been twice convicted of violating the Sherman Act and similar laws in Europe. If what B&N claims is true (which there seems to be substantial evidence to show) then they may be convicted yet again, having simply adopted tactics that are simply an evolution of the tactics they were previously convicted of.
Member since:2005-09-27
Member since:2007-08-22
They do not have to admit patent violations to make the charges they are charging. They only have to show that Microsoft is doing things they shouldn't be with the patents.
And of course, they also claim no infringing activity, but then, they also show that Microsoft is making it difficult for anyone to really figure out if they are infringing anything at all while they (Microsoft) is trying to coerce the party (e.g. B&N, etc) into a patent licensing deal, after which they may find they are not infringing any way but they have already signed an agreement to pay Microsoft some undisclosed amounts, again hidden by the NDA.
Member since:2005-09-27
Member since:2006-01-06
In this case:
- Is Microsoft charging a non-trivial fee for a trivial patent? If so, it is patent abuse.
That is precisely the role of the court to decide. B&N has the right to raise that issue, and I'm sure that it will be addressed, if it ever gets that far.
It's hard to see how the Sherman Act is, in any way, involved in this case. MS does not hold a monopoly on phone operating systems. If anything, it could be argued that having the market leader (Android) license patents from a company (MS) that holds less than 10% of the market is actually good for competition.
Member since:2007-08-22
In this case:
- Is Microsoft charging a non-trivial fee for a trivial patent? If so, it is patent abuse.
That is precisely the role of the court to decide. B&N has the right to raise that issue, and I'm sure that it will be addressed, if it ever gets that far. "
Yes, exactly. However, DoJ also oversees prosecuting anti-trust so while it may get resolved in Microsoft v. B&N, they are raising it as a wider issue saying that DoJ needs to look at the behavior to see if there is something more going on than simply this single case, which from what you can find on-line (e.g. Groklaw, etc) seems to be sufficiently justified.
It's hard to see how the Sherman Act is, in any way, involved in this case. MS does not hold a monopoly on phone operating systems. If anything, it could be argued that having the market leader (Android) license patents from a company (MS) that holds less than 10% of the market is actually good for competition. "
The issue is whether Microsoft is trying to leverage patents in the mobile space (where it doesn't have much market share) to protect its desktop space (where it does). In other words, are they trying to maintain their monopoly in the desktop space illegally by how they act in the mobile space, pressuring companies to use their software and trying to leverage their desktop monopoly to gain another monopoly in the mobile space, again illegally. That is where the Sherman Act comes into play.
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Great news. I have respect for B&N for their courage to do the right thing.
In reality DOJ could do a much better job in comparison to this:
http://www.justice.gov/atr/cases/f3800/msjudgex.htm#iiie
They never prohibited Windows bundling, while it clearly goes against antitrust regulations. But no one was pushing it much.
Hopefully in this case B&N will knock on them enough to steer the patents abuse case.
Edited 2011-11-09 17:37 UTC
Member since:2006-01-06
Why is refusing to license patents "the right thing"? I know it's "the preferable thing." But unless the patent system changes -- and that's doubtful -- B&N could be making a really, really bad/costly business decision. And for what? Principle? No, I don't think that's what's going on here. What B&N is doing here is negotiating for more favorable licensing terms.
Member since:2007-02-17
Why don't B&N simply have the option to remove/replace the trivial & non-essential functions that Microsoft is alleging are infringements of Microsoft's patents?
You know, take out trivial & non-essentioal algortihm X, and perhaps replace it with algorithm Y that does an equivalent function in an entirely different way.
Then B&N (and all other Android devices) won't infringe on Microsoft's preciousssssss^W IP.
Everyone wins.
Easy peasy. Let's do it, hey!
Member since:2006-01-06
Member since:2007-02-17
The essence of B&N's case is that Microsoft doesn't give them that option.
Car analogy: almost the equivalent of a car maker being allowed to choose between either NKG or Autolite spark plugs, except in the B&N case B&N allege that the bits Microsoft are suing over are trivial and not essential, not as important even as spark plugs, and Microsoft are asking for the entire price of the car.
The word "racketeering" comes to mind.
http://en.wikipedia.org/wiki/Racketeering
Edited 2011-11-09 23:06 UTC
Member since:2006-01-06
You're getting suckered by lawyers. B&N may want to license certain "trivial" patents -- because they want the functionality, but MS is probably giving them the same price, regardless of the subset. That is MS's right as a patent holder.
This is not an antitrust issue. MS doesn't have a monopoly in phone operating systems. Android is the market leader and, therefore, B&N is really barking up the wrong tree here; B&N won't get any traction with a antitrust complaint because this is a patent infringement case -- and that's a matter for the courts to decide.
Member since:2006-01-14
Actually, B&N do have a case. They are arguing not that Microsoft has a monopoly in the mobile market, but that they are using their monopoly in the OS market to stifle a competitor, Android. Android isn't just a phone OS, its also a tablet OS. Tablets will be outselling laptops soon. Now we begin to see the big picture. Microsoft has nothing in the tablet market right now. So they are trying to stifle the market as much as possible.
The fact that many other companies have gone along with MIcrosoft instead of going to court is irrelevant.
Member since:2006-01-06
That makes zero sense. The patents in question are platform-agnostic and not specifically related to Microsoft's desktop OS.
Member since:2007-02-17
Car analogy: this is almost the equivalent of a car maker being allowed to choose between either NKG or Autolite spark plugs, except in the B&N case B&N allege that the bits Microsoft are suing over are trivial and not essential, not as important even as spark plugs, and Microsoft are asking for the entire price of the car.
Market failure. Microsoft are supposed to offer B&N an attractive price for a license to use Microst's patented algorithm, lest B&N decide that other options are better and decide to use an alternative, different algorithm from another software vendor for the same purpose. At least, that is how it is supposed to work. New, patentable inventions are supposed to be more attractive, and worth licensing over standard ways of doing things.
Android is an OS used on phones and tablets.
Microsoft's own PR is that a tablet is a PC.
http://www.electronista.com/articles/11/07/12/microsofts.lees.says....
"We view a tablet as a PC," Lees said.
Microsoft has an effective monopoly in PC operating systems.
B&N's case is that Microsoft is trying to preserve that monopoly by preventing alternative OSes from competing fairly.
On the face of it, B&N have a very good case.
Member since:2006-01-06
That's too bad. Microsoft owns the patents. It gets to decide whether to license -- or how much to charge. That's the way our system works. And, obviously, B&N and Google are pissed off about it. The courts have already ruled that MS gets to keep and exercise its IP, even if it has a monopoly.
MS is under no obligation to license its patents. It could force B&N to stop infringing by withdrawing its products. Licensing is probably the less expensive option.
Microsoft's own PR is that a tablet is a PC.
Nice try. But, unfortunately for your argument, antitrust requires definition of the relevant market. The courts have said that MS has a monopoly on operating systems for x86-based processors. Not ARM. Not RISC. Not MIPS. Not Cray. Not random tablet hardware.
You simply don't know what you're talking about.
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Not really, normal companies do what they think will maximise their profit. If they think that agreeing with an unethical methods and pay is the less expensive choice, it is the one they will follow (hence amazon and others paying the license). My guess is that B&N being a traditional retailer, rather than a tech company, their management have limited experience with the patents system (unlike amazon and others who are tech companies), and their lawyers considered they would make more money with a trial than with paying a license, and as a normal company, they advised B&N to fight back.
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B&N throw out all doubt about their cluelessness when they mention anticompeteiveness. The entire point of a patent is an exclusive monopoly on an idea. Licensing patents is a luxury Microsoft afford B&N because it coincides ih their business model.
Th DoJ has an obligation to uphold the law, not decide it's validity. Whatever that law may be, regardless of any kind of morality.
Thy really have two options: Sue on the grounds of paten inalidity or on the grounds of unconstitutionality. Good luck with either of those.
Member since:2007-08-22
Th DoJ has an obligation to uphold the law, not decide it's validity. Whatever that law may be, regardless of any kind of morality.
Thy really have two options: Sue on the grounds of patent invalidity or on the grounds of unconstitutionality. Good luck with either of those.
B&N is claiming Microsoft is breaking the Sherman Act and potentially RICO. They are not saying all patents are invalid, or anything of that short.
That said, while one may be granted a patent there are limits to what one can do with a patent. Infringement, for example, is also linked to how key the patent is to the infringing device - if it is trivial then the cost for licensing the technology is required to be equally trivial in comparison to the sale of the infringing device - B&N is showing that Microsoft is not doing so, thereby it is guilty of patent misuse, and its tactics in the whole scheme are violations of the Sherman Act (Antitrust) and possibly RICO (racketeering, though its not mentioned).
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Why not Apple they have been far worse lately about trying to kill the portable industry with patient buying and litigation.
My real hope is all this patient trolling by all the big names is a thump on the head that the whole patient system needs major reform. Too many patients for generic concepts. Patients and copyright should be shortened to five or ten years at most. If you can't come up with another patient-able idea that time, get a job like the rest of us.
How about patients and copyrights can only be owned by original creator they can not be sold, only licensed for use.
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2006-01-28
I am buying a Nook today.
We need to support companies that show a backbone and are willing to stand up for fair business conditions and against the abuse that the patent system has become.
If thousands of us did the same and sent a note as to why to B&N, the folks there might feel a little bit more upbeat about doing the right thing, rather than turning over on their backs when Microsoft offers them the chance to walk away if they just sign another NDA saying that they are committed to respecting intellectual property.
Folks, vote with your wallets!
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Exactly!
I commented on MS's mafia-esque patent trolling behaviour in a previous post (for another article) and was told that this is "just business." That reply didn't sit well with me then and it still doesn't now.
Hats off to Barnes & Noble. You did the right thing! Let's hope the DOJ can actually do something about it.
Member since:
2006-12-30
..."This is a court of law, young man, not a court of justice."
~Oliver Wendell Holmes, Jr.
(http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr.)
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2008-08-09
Out of curiosity, is there any patent action that Thom would not refer to as "trolling"? Because the more common use tends to involve companies that hoard patents they don't use and haven't invented to sue companies that are too small to actually defend themselves in court safely. In this case it certainly seems that B&N are perfectly capable of defending themselves, and the patents are certainly at least to some part things that Microsoft did invent and use (the FAT32 patents being one that is often brought up).
The patent system certainly does not work well today, but the way the laws work sure seem to suggest that the FAT32 patents (long/short-filename resolution etc.) are perfectly valid under those laws, and part of the system working as intended. The FAT32 patents are not even so wide as to cover everything (after all, what other filesystem does the short/long-name thing at all?), but make it impossible to implement FAT32 without them. As it happens Android ships with FAT32 support, and widely uses it as part of its core functionality, in the form of the filesystem used on the SD cards it uses for storage.
So, Microsoft did invent FAT32 as it is, they do hold rights to the way it functions. They did nothing to make Google use FAT32 extensively in Android, and Android needing a license for FAT32 seems to square perfectly well with current (flawed) law. Google could easily have used ext2-formatted SD cards instead with only a minor loss of interoperability. On the other end of things Microsoft is constantly forced to pay for licenses for tons of random patents, and it is certainly their responsibility towards their shareholders to do the same since it can be a significant revenue stream. In short, the system needs to change, because Microsoft is acting correctly within it and has little choice to do anything else.
Member since:2006-01-14
This isn't about the patents that they hold or don't hold. There are several charges that B&N and suing over. First, when they were informed by Microsoft that they were infringing, Microsoft refused to tell them what patents they infringed without an NDA. I wouldn't be surprised if that NDA had all sorts of clauses in it to make B&N pay no matter what they did after that point. Second, when filing the lawsuit, Microsoft sued over almost completely different patents than those they originally told B&N about. Third, they are charging an absurd amount of money for these patents versus what they are charging for WinMob 7. This is anticompetitive behavior by a monopoly.
Member since:2008-08-09
Microsoft is not a monopoly in mobile, nor does this in any way leverage their desktop PC monopoly. Also the system is such that you can charge whatever you want for licenses. This is one of the aspects I agree with in the system, whatever level of patent protection we should have it should certainly be such that the holder of the patents can accept or refuse any deal for licenses. In much the same way it is certainly perfectly all-right for Microsoft to sue over whatever patents they want, independent of any discussions they have had beforehand. Discussing some patents with B&N simply cannot mean that Microsoft is barred from enforcing all other patents they have, such a setup would just be bizarre.
The NDA thing is a good point though, all around pretty iffy. I am not that convinced that it is legally problematic within the current system however, so it may again a question of the system needing to change, rather than there being anything wrong with this situation within the current system. Not nearly as certain there though.
Member since:2010-06-08
Member since:2008-08-09
Quite right, what I am saying is that it is important to keep focusing on the flawed system, rather than cheering on various favorites within the system. The fact is that Microsoft also has to pay a huge amount of money on licensing deals, and they are more or less forced to take action themselves to keep the playing field somewhat even.
Member since:2006-07-04
"Fair, reasonable, and non-discriminatory" patents. Whereby the patent holder must license the underlying tech (rather than demand that particular products that use the tech be banned altogether) to everyone at the same terms, and the terms must be "reasonable".
"Reasonable" is the sticky point; I guess courts can decide whether offered terms are "reasonable" or whether they should be lowered.
But regardless of the terms, I do think patent holders should be required to license their tech, and license it to everyone, and offer everyone the same terms.
Member since:2010-06-08