posted by Thom Holwerda on Wed 9th Nov 2011 16:13 UTC
IconTo 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.

I don't think any company has been this clear as of yet. Google and several others condemned the actions of the Apple/Microsoft/Oracle cartel, but Barnes & Noble minces no words and serves up no diplomacy: Microsoft is using its insubstantial patents to illegally stifle competition.

How, you ask? Well, Barnes & Noble comes to the same conclusion many of us already came to simply by using our magnificent brains and Staff of +45 Common Sense. "Microsoft is embarking on a campaign of asserting trivial and outmoded patents against manufacturers of Android devices," Barnes & Noble said in a letter to Gene Kimmelman, the Justice Department's chief counsel for competition policy, "Microsoft is attempting to raise its rivals' costs in order to drive out competition and to deter innovation in mobile devices."

Barnes & Noble's claim is interesting because it's one of those claims that's easily backed up by proof. B&N is stating that Microsoft's licensing offer for these 'trivial and outmoded' patents costs exactly the same as a Windows Phone 7 license, thereby making Android far less desirable. B&N had been in negotiations with Microsoft over this one for a while, so they most likely have the proof to back this up. The insanity of this should be pretty clear. How on earth can the cost of licensing a few patents be the same as licensing an entire operating system?

"It is Barnes & Noble's understanding that these licensing fees that Microsoft demands for use of the Android [operating system] are the same, or higher, than the licensing fees that Microsoft charges for its own Windows Phone 7 - despite the fact that Microsoft only claims ownership of only trivial and nonessential design elements in Android-based devices, as opposed to an entire operating system," Barnes & Noble said.

B&N has more, though. Microsoft initially offered B&N a license for six patents. The current patent suit filed against B&N five patents, of which only one was part of the initial six. Worse yet, B&N details how Microsoft used a set of NDAs to prevent B&N from gaining insight into and sharing the patents in question, the pricing structure, how B&N infringed the patents, and so on.

Furthermore, one of the offers Microsoft made would have severely limited B&N's ability to upgrade the Nook's Android operating system, effectively crippling or even eliminating said ability altogether - and thus, making it less competitive. Microsoft wants to keep this offer a secret by labelling it proprietary - B&N urges the DoJ to subpoena this offer.

"Microsoft's assertion of confidentiality is simply a means to cloak its oppressive and anticompetitive licensing proposal, and is another element in Microsoft's larger scheme to restrict competition in the mobile operating systems market," B&N added.

None of this comes as a surprise to most of us. I'm hoping the Department of Justice investigates this matter thoroughly - it's clear what Microsoft is trying to achieve here. This is exactly why companies like Microsoft, Apple, and so on are pushing for stricter IP protection - not because they consider patent infringement stealing, but because it gives them a handy tool to block competition. Can you imagine what would happen if all IP infringement was acted upon? Microsoft and Apple would have no more products to sell, and no more ideas to steal!

Sadly, there is little us simple folk can do - especially in light of hordes of fanatics of these companies defending practices like this at every turn. I've said it before, and I'll say it again: software patents are the biggest threat to the technology industry. You think Microsoft's monopoly was bad?

It's child's play compared to this.

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