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Barnes & Noble comes out swinging against Microsoft: Hints Amazon is "restricted" by licensing deal

Barnes & Noble says Microsoft is "misusing" its patents

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Barnes & Noble has responded to Microsoft's patent suit, and it's not backing down. According to B&N, 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." The really interesting story is the way Microsoft tried to wrangle the bookseller into a settlement, and its other licensing deals. Maybe Microsoft is why we haven't seen an Amazon Android Tablet.

According to the response (PDF) Microsoft has chosen to attack Android — without specifically naming Android — using "insubstantial and trivial features" such as displaying a Web page's content before a background image is received, showing download status on top of downloading content, and permitting users to "easily select text in a document and adjust that selection."

In short, the response states the obvious: Microsoft has patents on features that should never have been granted patents in the first place — and since it fails at competition, it's trying to license or litigate itself into success. If you can't beat 'em, try to fool them into a licensing deal that would bring in the revenue that you can't wring out of paying customers. If that doesn't work? Sue.

The backstory is the most interesting. According to the filing, Microsoft sent lawyers to Barnes & Noble on July 20, 2010 and told Barnes & Noble that it was infringing six patents. Which six? Well... Microsoft didn't want to disclose that unless the company signed a Non-Disclosure Agreement. I don't know if this is common practice, but I certainly wouldn't be inclined to sign an NDA with a company that comes to my office claiming I'm infringing on its patents. Quite the opposite — I'd want to be able to talk about it quite publicly, and start gathering prior art.

Throughout the discussions with Microsoft, Barnes & Noble notes repeated attempts to corner the company into NDAs or agreements to treat its licensing conversations with Microsoft as confidential.

Here's a hint: If Microsoft is so confident that it has a strong case, why is it so preoccupied with trying to wrangle other companies into confidentiality agreements to discuss terms and its claims?

Once B&N did enter into the NDA? The information provided by B&N "did not contain confidential information but instead did nothing more than set forth the published claims of certain Microsoft patent on the one hand and publicly known features purportedly employed by ... Android."

Oh, and Microsoft wants "shockingly high licensing fees" according to Barnes & Noble. It doesn't specify what the fees are, but the company says that the fees are "higher than what Microsoft charges for a license to its entire operating system designed for mobile devices." That's a neat trick — pay us more than what we charge for our own software to use someone else's that has features we claim to own.

I have to hand it to Barnes & Noble. They pull no punches in the response. They call Microsoft out for what it's doing — trying to stifle competition, and providing zero value to the marketplace.

On page 20 of the response, B&N also says that "Amazon, who sells the Kindle eReader, entered into a license involving Microsoft's patents that may have contained controls and restrictions on Amazon's activities beyond the scope of Microsoft's patents." Loosely translated — this may be why Amazon is taking such dainty steps around Android and Linux on mobile. It's made a deal with the devil, er, Microsoft not to ship an Android-based device.

At 50 pages, the response is not a light read — but it is worth skimming.

Of course, I don't really expect a judge to look at the response and say "well, it's obvious that Microsoft's patents are ridiculous and the company is grasping at straws to maintain its dominant market position." That's the reality, but the patent system, U.S. courts, and reality are rarely seen together in public.

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