Microsoft sues Barnes & Noble over the NOOK

Microsoft sues Barnes & Noble over the NOOK

Microsoft has patents on the way most people experience the web, and they say that Google’s Android has violated those patents.

According to them, the way they prefer to deal with companies that use Android is to have those companies pay them for the use of the patent…to pay them a licensing fee.

Last year, HTC did that for their SmartPhones…and Amazon did it for the Kindle (according to Microsoft).

Barnes & Noble has not done that.

Microsoft says they’ve been talking to the for a year, and they haven’t been able to reach such an agreement.

Microsoft also says:

“Together with the patents already asserted in the course of our litigation against Motorola, today’s actions bring to 25 the total number of Microsoft patents in litigation for infringement by Android smartphones, tablets and other devices. Microsoft is not a company that pursues litigation lightly. In fact, this is only our seventh proactive patent infringement suit in our 36-year history. But we simply cannot ignore infringement of this scope and scale.”

What is this going to mean? 

Well, the first part of that question is whether or not Microsoft would win.  My guess is they would.  :)  They probably wouldn’t start these suits, which are expensive, if they didn’t think they’d win. 

If B&N switched to the licensing program, would Microsoft drop the suit?  Maybe…although they might want to sweeten things a bit, including paying for Microsoft’s legal costs.

I don’t think this crushes the NOOK (this affects both the NOOK and the NOOKColor)…but it doesn’t help…

Microsoft blog entry

Microsoft press release

PCMag article

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

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5 Responses to “Microsoft sues Barnes & Noble over the NOOK”

  1. Edward Boyhan Says:

    If a judge grants MS injunctive relief, this could be devastating for BN. IMO, not likely.

    • bufocalvin Says:

      Thanks for writing, Edward!

      I agree with you, I don’t see it getting to the point of a judge actually deciding anything. I could be wrong (I have been before) ;) , but it seems inevitable to me that Barnes & Noble will cave and pay a licensing fee. it’s not good for B&N…I’m sure a settlement at this point will cost them more than paying the licensing fee would have done in the first place. They worked something out with Spring Design over the Alex, after all. Whether B&N can go after Google for anything, I don’t know. B&N didn’t develop the technologies being claimed (rightly or wrongly by Amazon)…will they be able to say to Google, “We licensed Android in good faith…you should have told us there were patent questions”? Don’t know…

  2. Devlin Says:

    Microsoft isn’t new at this. They have been playing this game with Linux for well over a decade yet when called out on the carpet they have yet to show the infringed upon patients. Personally I don’t believe there are any and they are just hoping companies will not take the matter to court because then they’d have to produce the patients.

    I hope the patient laws get reformed so big companies with deep pockets can not play games like these simply because they can afford keep things tangled in court until the competitor caves to them or goes bankrupt trying to fight it.
    I think the companies being threatened should claim slander, that would force Microsoft to show the infringing patient or shut up.

    But thats only me….

  3. Edward Boyhan Says:

    I guess I’ll just add a quarter more to my two cents above. MS is getting a good tongue lashing over this on the net today — unfairly, I think.

    MS must at some point exercise due diligence to protect their intellectual property rights, or they lose them (the classic example here is Kleenex from the ’30s, or Aspirin from pre-WW-I). This is why Coke and Disney sue everybody in sight if there is even a whiff of similarity.

    I doubt that any direct monetary considerations or product development issues played much of a role in MS’s thinking here. This is a purely legal issue, and is the result of our screwed up patent, trademark, and copyright laws which desperately need a radical overhaul for the 21st century (and what’s currently wending its way through congress ain’t it).

    In recent years I have grudgingly come to the conclusion that the patent office’s decision to grant software patents back in the seventies was incorrect. The whole existing notion of patent and copyright protections are inadequate given where we’ve come to. In addition to “fairness” for all the stakeholders, whatever regime you adopt must be acceptable to the general public — otherwise no matter what the law says, it will be unenforceable (as the music industry has already discovered). It is the failure to address the enforceability issue that causes much of today’s legal meanderings — sorry didn’t mean to rant :-)

    • bufocalvin Says:

      Thanks for writing, Edward!

      Well, I would put Disney and Microsoft in very different categories. Disney legendarily protects its rights. I’ve run into that myself. One classic example to me: when my offspring was in elementary school, kids would bring in videos that the class would watch if it was a rainy day. They actually got a cease and desist letter from Disney (and only from Disney).

      Microsoft doesn’t seem anywhere near that…insistent.

      I think the odd part for me with Microsoft’s patents is that they seem to be on ideas rather than specific processes. That’s not how I think of a patent.

      Aspirin and Kleenex (and Escalator and Heroin and Freeware) are trademarks, and that’s different. Trademarks are designed to protect your identity in business…they are pretty narrow. They are a trademark for a specific type of item…and if you don’t have the item in the market, you have a hard time arguing confusion.

      Disney sues everybody to prevent Mickey Mouse from becoming Donkey Kong (King Kong had previously been determined to be public domain). You can protect a copyright even if it has no market presence…if you don’t use a trademark regularly (I think it’s every five years), you can lose the exclusive rights to it

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