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B&N Pummels Microsoft Patent Claims With Prior Art 332

Posted by Soulskill
from the beware-the-wrath-of-patent-attornies dept.
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.'"
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B&N Pummels Microsoft Patent Claims With Prior Art

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  • by MightyMartian (840721) on Friday November 18, 2011 @01:53PM (#38101410) Journal

    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.

  • by Anonymous Coward on Friday November 18, 2011 @01:54PM (#38101434)

    They haven't beaten them, they still need to draaaaag this through the courts, which MS will certainly ensure this is very very costly and last for years. I.e. even though MS are likely to be full of shit, they have a bigger cash pile than almost anyone else which will ensure most companies don't try to fight it, and take the easy licensing options. In legal terms, it's called a shake-down. The mafia used it rather well.

  • by MozeeToby (1163751) on Friday November 18, 2011 @01:55PM (#38101440)

    It's possible that these are not the strongest patents Microsoft can bring to bear on the issue. They may just be testing the waters to see how far Barnes and Noble are willing to go with their (to Microsoft) dangerous brinksmanship.

  • by Anonymous Coward on Friday November 18, 2011 @01:57PM (#38101468)

    Most of them were cell phone makers who were, while paying to make Android phones, getting a bigger stipend to develop Windows Phone 7 phones.
    B&N has no interesting in making WP7 based tablet. They choose Android because it was a fairly mature, stable, and most importantly, FREE.

  • by Anonymous Coward on Friday November 18, 2011 @01:57PM (#38101474)

    I have to wonder if because B&N are from a different field, where the BS of software patents isn't prevalent, that they're approaching this with a more reasoned perspective than traditional tech. companies do. That is, most software is pretty much the same fucking thing as 20 years ago, and letting people patent shit for tacking on the phrase "on the internet" or "on a tablet" is fucking ridiculous. Thus they have a huge laundry list of examples. Then again, it could be pure naiveté and a losing strategy, as judges are generally even more inept at making reasoned assessments of technology than the utterly incompetent and over-burdened patent clerks, and might do better with only a few examples.

    Or perhaps this just stems from B&N not having the same paradoxical "we hate software patents because they hurt us but love them because they let us bully others" attitude of say Google or MS or Apple. Either way, fight the good fight B&N. You'll probably lose, but you're right.

  • by TheRaven64 (641858) on Friday November 18, 2011 @01:58PM (#38101482) Journal
    Probably because the other companies asked their lawyers, who looked at how my MS could spend in court and said 'it's cheaper to settle', while B&N asked their developers who looked at the patents and said 'haha! These patents are ridiculous!' I doubt many companies employ lawyers who have the ability to judge the merits of the patents, which is part of the reason why patent trolling is so lucrative: the people making the decision to pay are lawyers and CxOs who will assume that a granted patent means a valid patent.
  • by Anonymous Coward on Friday November 18, 2011 @01:59PM (#38101504)

    Because they're device manufacturers. They're used to this sort of patent abuse; they pay the $10 or whatever and move on with life. I mean, they're doing it for their WP7 phones, it's not like $10 will destroy the handset's profit margin.

    B&N, on the other hand, is a bookstore. They picked Android specifically so they wouldn't have to pay a license fee on every device they sell, especially not to someone who had nothing to do with it. They have a legal team that's used to dealing with IP issues; they're a bookstore, IP stuff comes up from time to time. They're not used to being pushed around like this; they're usually the ones doing the pushing around against publishers. They aren't going to just lay back and put up with it.

  • by MightyMartian (840721) on Friday November 18, 2011 @02:01PM (#38101528) Journal

    I don't know if there is anything beyond the fact that B&N doesn't want to go forward with someone perpetually having a hand in their pocket. I'll wager their lawyers are screaming bloody murder about this, and certainly as a short-term strategy, it's probably better just to pay Microsoft's extortion demands, but in the long-term, if you trash Microsoft's crap patents, you deny them any involvement in your affairs.

  • by Anonymous Coward on Friday November 18, 2011 @02:03PM (#38101548)

    Come on Samsung, and Google. Patents were supposed to spur innovation, not squash competition. The system is broken.

  • by Anonymous Coward on Friday November 18, 2011 @02:06PM (#38101590)

    My guess is: Many patent disputes are settled with cross licensing deals. "Let me use your pantents and you can use mine." B&N is not a tech company so they don't have many chips to bring to this game. This gives them a stronger incentive to fight the patents.

  • Incompetence (Score:5, Insightful)

    by Overzeetop (214511) on Friday November 18, 2011 @02:07PM (#38101604) Journal

    More to the point, anyone skilled in the art should have know of such things - including any competent patent reviewer.

  • by MightyMartian (840721) on Friday November 18, 2011 @02:08PM (#38101640) Journal

    The issue always is time and money. Battling crap patents held by large companies like Microsoft will take years and cost a significant amount of money. Even if you win and somehow manage to get damages, they won't cover the whole bill, and you've spent two or three or even more years in a sort of limbo. You can readily understand why many manufacturers have just said "Fuck it" and paid Microsoft to go away. I'm amazed that B&N is fighting this, because I cannot imagine their lawyers were advising them that this was the way to go.

  • by Anonymous Coward on Friday November 18, 2011 @02:09PM (#38101652)

    all microsoft wants is money.

    Apple doesn't care about money from patent suits, they are out to see the their competitors burn.

  • by WindBourne (631190) on Friday November 18, 2011 @02:12PM (#38101692) Journal
    First off, not for another year. However, prior art STILL matters. You can not patent what you did not invent.
  • by Hatta (162192) on Friday November 18, 2011 @02:20PM (#38101782) Journal

    Do they not cover Kipling in law school? They should.

    It is always a temptation to an armed and agile nation
        To call upon a neighbour and to say: --
    "We invaded you last night--we are quite prepared to fight,
        Unless you pay us cash to go away."

    And that is called asking for Dane-geld,
        And the people who ask it explain
    That you've only to pay 'em the Dane-geld
        And then you'll get rid of the Dane!

    It is always a temptation for a rich and lazy nation,
        To puff and look important and to say: --
    "Though we know we should defeat you, we have not the time to meet you.
        We will therefore pay you cash to go away."

    And that is called paying the Dane-geld;
        But we've proved it again and again,
    That if once you have paid him the Dane-geld
        You never get rid of the Dane.

    It is wrong to put temptation in the path of any nation,
        For fear they should succumb and go astray;
    So when you are requested to pay up or be molested,
        You will find it better policy to say: --

    "We never pay any-one Dane-geld,
        No matter how trifling the cost;
    For the end of that game is oppression and shame,
        And the nation that pays it is lost!"

  • by SmallFurryCreature (593017) on Friday November 18, 2011 @02:20PM (#38101784) Journal

    All the other tech companies are used to dealing with Microsoft itself as partner, either for a product or in commitee. B&N probably has no relationship with MS other then as an end customer of Windows. Now that alone is enough to fuel a bitter hatred.

    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.

    Meanwhile MS has in one move ruined ALL its attempts to appear as if it wasn't the old evil MS anymore. The MS apologists who claim MS is no longer against openess or unwilling to play fair... well... they got to crawl back under the rock they came from and claim that this time MS Mobile Windows Phone Gazillion will be it!

  • by gl4ss (559668) on Friday November 18, 2011 @02:27PM (#38101884) Homepage Journal

    samsung and htc both manufacture ms platforms.

    they get the money fed back to them.

    and htc in particular is an old friend of ms, they manufactured almost all windows mobile phones(even those that were sold under qtek, jasjar etc brands) and probably were in bed with ms in dev side to some extent.

  • by TrueSpeed (576528) on Friday November 18, 2011 @02:31PM (#38101922)

    Google should make a change to their Android licensing terms. If you want a licence to the Google services or to even use Android commercially you must allow your patent portfolio to be used to defend the Android OS. With other companies in collusion and forming patent pools to attack Android this seems the best solution to smack down these patent trolls.

  • by javakah (932230) on Friday November 18, 2011 @02:37PM (#38101992)

    Not necessarily. It sounded like there was a pretty strict NDA in place. I wouldn't be surprised if it was to keep Google from knowing what the alleged infringing patents were, so Google may not have had a chance to really fight this.

  • by RyuuzakiTetsuya (195424) <{taiki} {at} {cox.net}> on Friday November 18, 2011 @02:40PM (#38102030)

    I don't think that Apple's using their patents on grounds of competition.

    I think Steve was so genuinely butthurt over the Android backstab by Schmidt that's it's personal; not professional.

  • Re:Incompetence (Score:5, Insightful)

    by suutar (1860506) on Friday November 18, 2011 @02:40PM (#38102032)
    and there we find the problem. Competent patent reviewers (especially in the numbers needed) cost more than the PTO can afford, especially with Congress siphoning off much of their revenue (from patent applications). So you get either too few good ones or many not-so-good ones, and either way they can't handle the workload.
  • by bluefoxlucid (723572) on Friday November 18, 2011 @02:43PM (#38102072) Journal
    I'm not signing an NDA because I'm being sent a Cease and Desist about shit that I'm not being informed about. You can't C&D me without telling me what you want me to C&D. When you raise lawsuit, I will tell the judge that you refused to inform me on what was the problem, and so I declined to enter in legal contracts under vague threats.
  • by LWATCDR (28044) on Friday November 18, 2011 @02:44PM (#38102078) Homepage Journal

    Well if they get into a knock down drag out fight with Microsoft and WP7 and or W8 tablets catch on they could be in big trouble. Samsung also makes PCs and laptops. They really don't want to make Microsoft angry.

  • by Anonymous Coward on Friday November 18, 2011 @02:55PM (#38102240)

    > over the Android backstab

    "over losing the battle to Android."

    FTFY.

  • Re:Stability (Score:4, Insightful)

    by laederkeps (976361) on Friday November 18, 2011 @02:58PM (#38102274) Homepage
    Wait a minute. Barnes and Noble (founded 1873) "isn't stable, might not exist in 5 years"? When compared to companies like HTC (1997) or Google (1998)?
  • by hairyfeet (841228) <bassbeast1968 AT gmail DOT com> on Friday November 18, 2011 @02:58PM (#38102280) Journal

    Not to mention for MSFT this really is a "heads I win, tails you lose' situation. think about it, what is the worst that will happen for MSFT? In a couple of years, maybe more as the case drags on and on AND ON those 5 patents get invalidated. The cost to MSFT? Not really anything, their lawyers are on the payroll and the court fees will be a joke. What do they gain? Well they have already made lots of money off of Android licensees, which BTW won't be affected at all by this since their contract was access to MSFT's patents not just these 5, so their contracts will still be upheld.

    So while I have always said software patents shouldn't have been allowed in the first place it was actually a shrewd move on the part of MSFT. They probably scared some away from Android, others they got paid just like they were selling WinPhone, I bet if one looks at the final numbers MSFT will have made a pretty damned nice profit without having to sell a single unit. Man I wish i could get paid for nothing like that, must be nice.

  • by c++0xFF (1758032) on Friday November 18, 2011 @03:00PM (#38102302)

    And in the meantime, the patents they bring out will probably be invalidated.

    Well, that certainly explains why the patents they're using in this suit are so laughable. Disposable ammunition.

  • by icebike (68054) on Friday November 18, 2011 @03:01PM (#38102310)

    all microsoft wants is money.

    Apple doesn't care about money from patent suits, they are out to see the their competitors burn.

    Microsoft does not care about money. At best they will only obtain 1/3 of the license fees, the rest go to Nokia and the canadian patent troll MOSAID.

    Microsoft wants to make it prohibitively expensive to produce any Android phone.

  • by Jeng (926980) on Friday November 18, 2011 @03:05PM (#38102362)

    B&N's brick and mortar stores are going to close up and blow away.

    B&N knows that they have to start distributing their titles via electronic means. This is their future, if they just rolled over they may as give up and declare bankruptcy.

    So they have a chance if they are successful, but fucked if they don't, so they must try or die.

  • by GNious (953874) on Friday November 18, 2011 @03:09PM (#38102392)

    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.

    Wouldn't MS have had a chance (and incentives) to include a clause against this (counter-suit) in the license-agreement they've made the other companies sign?
    I.e., "Though the patents are valid and the party is in violation, the party waiver all right to bring suit to reclaim any license-fee, should the patents be proven invalid, or the party shown to, in fact, not be in violation" ...

  • by Tomato42 (2416694) on Friday November 18, 2011 @03:27PM (#38102608)
    HTC is selling phones with Windows, Samsung is selling computers with Windows, B&N is not selling hardware with MS soft on it. Do the math.
  • by Tharsman (1364603) on Friday November 18, 2011 @03:38PM (#38102778)

    They know that wont stop Android manufacturers.

    What they want is for Android to lose it's "free" advantage by encoumbering it with patent licesning costs.

    They dont want it to fail off their own merits, just to lose that advantage. A world were some one can get a user friendly OS for free is a world that scares Microsoft. Was true with Linux despite it not being too user friendly, and is even more so with Android, due to it being much more user friendly.

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