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ITC Throws Out B&N Antitrust Claims Against MS 97

Posted by Unknown Lamer
from the one-patent-to-rule-them-all dept.
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."
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ITC Throws Out B&N Antitrust Claims Against MS

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  • by Anonymous Coward on Wednesday February 01, 2012 @12:06PM (#38891951)

    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!!!

  • Florian Mueller? (Score:5, Insightful)

    by CrimsonAvenger (580665) on Wednesday February 01, 2012 @12:08PM (#38891965)
    People still take this guy seriously?
    • by Joehonkie (665142)
      Not usually, but this seems to be a correct statement of facts.
      • by forkfail (228161)

        What do facts matter when one can go with an ad hominem approach?

      • Re:Florian Mueller? (Score:4, Informative)

        by Anonymous Coward on Wednesday February 01, 2012 @01:42PM (#38893255)
      • Not usually, but this seems to be a correct statement of facts.

        Well, other than the part where you can't actually read the order yet...

        Note also that a dismissal of an "Affirmative Defense" isn't actually the end of the world - it just means that you'll have to actually go to Trial for real, rather than saying "Nyah, nyah, the law says that since we have this affirmative defense, you lose!"....

    • Re:Florian Mueller? (Score:5, Informative)

      by Penguinisto (415985) on Wednesday February 01, 2012 @12:47PM (#38892441) Journal

      They do, but at least they've (finally!) began putting in the disclosure that Mueller is a paid Microsoft shill.

      • by HBI (604924)

        I'd happily read his stuff if the citation also included "lying sack of shit". Which is most appropriate.

    • by HiThere (15173)

      See today's Groklaw. The /. articel is inflamatory, haven't checked the original.

  • Key passage: (Score:5, Insightful)

    by forkfail (228161) on Wednesday February 01, 2012 @12:21PM (#38892113)

    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.

    • by rtb61 (674572)

      More specifically junk patents help the rich screw the poor. The 99% pay the cost of those patents while the 1% rake in the profits and absolutely nothing to do with innovation just straight up greed. The current administration is quite comfortable with greed. That any government can look at these patents in question and not see the scammy pieces of shit they are is as corrupt as the regulations they created to give the force.

  • by chrb (1083577) on Wednesday February 01, 2012 @12:40PM (#38892347)
    MS says: [technet.com]

    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!).

    • by Anonymous Coward

      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.

    • 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.

      • by Anonymous Coward

        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.

        • by mutley89 (2525472)
          IANAL, but I'm pretty sure that arguing that a patent is invalid in court is a defence against patent infringement. See here [groklaw.net] 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 [groklaw.net].
    • by MrHanky (141717)

      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.

      • by chrb (1083577)
        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.
      • They do make more money licensing Android patents than they do from WP7 licenses. It's right there in their corporate reports.
        • by MrHanky (141717)

          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

    • by dgatwood (11270)

      In order:

      * Give people easy ways to navigate through information provided by their device apps via a separate control window with tabs;

      Nook doesn't have any real notion of windows. It's a tablet-based OS.

      * Enable display of a webpageâ(TM)s content before the background image is received, allowing users to interact with the page faster;

      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 abou

    • 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:
      * Provide users the ability to annotate text without changing the underlying document. ... please... what does yellow highlighter d
      • by unrtst (777550)

        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'r

        • 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.
        • "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."

          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-in

  • 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 [android.com]

    "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/ [bodhilinux.com]

  • by Anonymous Coward on Wednesday February 01, 2012 @12:58PM (#38892601)

    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.

  • by PortHaven (242123) on Wednesday February 01, 2012 @01:19PM (#38892889) Homepage

    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.

  • I'm sure we're all so surprised.
  • 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.

  • So the antitrust claims failed ... how about charging them with extortion?

    • So they can waste more money on a claim that will get thrown out? Enforcing your patents is not extortion. Well unless your Samsung and then it's okay to use FRAND patents as a bludgeon.

  • Lawyers vs Shills (Score:4, Informative)

    by inode_buddha (576844) on Wednesday February 01, 2012 @01:50PM (#38893381) Journal
    And here's [groklaw.net] 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.
  • 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.
  • by sgtrock (191182) on Wednesday February 01, 2012 @02:27PM (#38893921)

    before making any assumptions:

    I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

    So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

    Litigation isn't like football. It is rarely suddenly over.

    Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?

    Lots more here [groklaw.net].

  • See PJ's comment [groklaw.net] on Groklaw. Covers it pretty well.

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