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Barnes & Noble Charges Microsoft with Misusing Patents

groklaw.net

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Re: Barnes & Noble Charges Microsoft with Misusing Patents

#11

Post by kenjackson »

nobodyspecial wrote: post #9
kenjackson wrote: post #8

Earlier quoted context omitted.

That's a stretch. Especially since the largest players over to past decade haven't been attacked in this way by MS... Apple, Palm, RIM. In the tablet space even Android is a niche player compared to the iPad. Additionally until recently the Nook was pretty much just an eReader, with the most popular software client running on Windows. My point is this is a stretch, like any good conspiracy theory.

ahh, but it's not that MS IS a monopoly in the market, it's that MS is using a current monopoly to leverage into another market.

But licensing or suing isn't leveraging their current monopoly. They aren't blocking Android from syncing on Windows. They're not blocking the Nook client from working on Windows. They're not bundling WP with Windows.

They're suing over patents. Last I checked even monopolies could sue over patent infringement.

If BN asserted they were actually using their monopoly power then that would be one thing. But simply asserting that a monopoly in one space is being scrappy in another doesn't meet the bar.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#12

Post by ZeroGravitas »

kenjackson wrote: post #5
wccrawford wrote: post #4

Earlier quoted context omitted.

Just because it's the norm doesn't mean it's right. There are plenty of things that companies used to do that are now illegal because they ensure monopolies or otherwise disrupt the economy. I wouldn't be surprised to see that patent cross-licensing like this turns out to be one of those things in the future. I have to agree that it would be better to invalidate the patents, but sometimes you have to settle for what…

But MS plus Nokia isn't near a monopoly in mobile devices. Google plus Apple maybe, but MS/Nokia are currently hanging on for life in this market.

B&N claim that Microsoft is asserting control over Android via (tangential) patents which, when you add Nokia, gives them control over the Number 1 & 2 smartphone OSes, plus Windows Mobile which is about 2/3rds of the global market.

So under this theory either Microsoft is right, and deserves payment for the vital IP it has over Android and therefore controls large segments of the market, or Microsoft is wrong, and has no ownership and control but in that case deserves no money.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#13

Post by cooldeal »

ZeroGravitas wrote: post #12
kenjackson wrote: post #5

Earlier quoted context omitted.

But MS plus Nokia isn't near a monopoly in mobile devices. Google plus Apple maybe, but MS/Nokia are currently hanging on for life in this market.

B&N claim that Microsoft is asserting control over Android via (tangential) patents which, when you add Nokia, gives them control over the Number 1 & 2 smartphone OSes, plus Windows Mobile which is about 2/3rds of the global market. So under this theory either Microsoft is right, and deserves payment for the vital IP it has over Android and therefore controls large segments of the market, or Microsoft is wrong, and h…

>B&N claim that Microsoft is asserting control over Android via (tangential) patents which, when you add Nokia, gives them control over the Number 1 & 2 smartphone OSes, plus Windows Mobile which is about 2/3rds of the global market.

That doesn't make any sense whatsoever. Apple asserting it's patents against HTC, Samsung and Motorola will give them control over 75% of the US market, so it's now an anti-trust concern? I think that argument is a stretch.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#14

Post by VengefulCynic »

kenjackson wrote: post #3

BN seems to want to make this something it isn't. It's a standard patent infringement suit, with licensing opportunity. BN's motive speculations don't add anything as using patents against competitors is common. The whole Nokia thread is odd. They're not a party in any way of this lawsuit. And furthermore IP cross licensing amoung partners is extremely common, if not the flat out norm. BN should stick with trying to…

It's important to note here that a big piece of Barnes & Noble's argument is bad faith on the part of Microsoft.

They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7.

In layman's terms, it's like if I owned a patent on a keyboard and tried to keep you from making a computer to compete with mine by charging a licensing fee for my keyboard patent that was more than the cost of my entire computer. That's what Barnes and Noble is accusing Microsoft of doing.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#15

Post by cooldeal »

rbanffy wrote: post #6
kenjackson wrote: post #3

BN seems to want to make this something it isn't. It's a standard patent infringement suit, with licensing opportunity. BN's motive speculations don't add anything as using patents against competitors is common. The whole Nokia thread is odd. They're not a party in any way of this lawsuit. And furthermore IP cross licensing amoung partners is extremely common, if not the flat out norm. BN should stick with trying to…

Intent is important. Microsoft is using those patents to disrupt an ecosystem it deems threatening to its need to (illegally) leverage its desktop OS monopoly into the mobile space in order to gain market share there. Android is a threat to Microsoft's desktop market because it furthers the trend away from PCs and towards mobile devices. Microsoft is also using its "war chest" to threaten less well financed players w…

>its need to (illegally) leverage its desktop OS monopoly into the mobile space in order to gain market share there

Huh, how can that happen? Is MS forcing PC OEMs to bundle Windows Phones with their PCs?

If intent is important, then all of Apple's lawsuits against Android will be thrown out, since Apple can be construed as trying to gain a monopoly in the mobile phone market.

>Oh yes, I am criticizing Microsoft. Let the karma burn.

This is HN. Maybe you mean Apple?

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#16

Post by kenjackson »

VengefulCynic wrote: post #14
kenjackson wrote: post #3

BN seems to want to make this something it isn't. It's a standard patent infringement suit, with licensing opportunity. BN's motive speculations don't add anything as using patents against competitors is common. The whole Nokia thread is odd. They're not a party in any way of this lawsuit. And furthermore IP cross licensing amoung partners is extremely common, if not the flat out norm. BN should stick with trying to…

It's important to note here that a big piece of Barnes & Noble's argument is bad faith on the part of Microsoft. They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7. In layman's terms, it…

They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7.

But is that illegal? AFAIK MS is under no obligation to license these patents at all, much less under RAND.

And again, MS has no monopoly on WP7, so a comparison to WP7 pricing has nothing to do with their monopoly status on the desktop.

In many regards MS is doing this exactly right. They are being aggressive in the mobile space, but they are NOT using their desktop market position to accelerate it. They're not blocking bn.com from IE. They're not bunding WP7 with Windows 7. They're not saying that BN must license these patents if they want to sell Windows 7 as a retailer.

To put it another, imagine WP7 was its own company. Would they be doing anything differently? I don't think so. I think they'd still be scrappy trying to leverage their assets in any way to make money and slow down competitors. They aren't using the desktop/server OS monopolies at all for any quid pro quo. What they're doing today is what they'd be able to do as a standalone company. This implies that they're not using their monopoly position as leverage.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#17

Post by VengefulCynic »

kenjackson wrote: post #16
VengefulCynic wrote: post #14

Earlier quoted context omitted.

It's important to note here that a big piece of Barnes & Noble's argument is bad faith on the part of Microsoft. They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7. In layman's terms, it…

They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7. But is that illegal? AFAIK MS is under no obligation to license these patents at all, much less under RAND. And again, MS has no monop…

You're getting hot and bothered about legal arguments that just aren't there. Other than alleging antitrust implications by Nokia and Microsoft cross-licensing patents from (between them) a dominant position in the mobile phone industry, there aren't any legal arguments about monopolies in this filing.

98% of this filing is about misapplication of patent law and bad patents. This has nothing to do with anti-trust other than one line in one paragraph in a 70-paragraph defense and counterclaim section.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#18

Post by kenjackson »

VengefulCynic wrote: post #17
kenjackson wrote: post #16

Earlier quoted context omitted.

They're characterizing Microsoft as a bully who is attempting (under cover of NDA) to use a limited number of patents (with limited scope) to extract a per-device license that is greater than what it charges for providing the entire operating system (and access to its patents) on WP7. But is that illegal? AFAIK MS is under no obligation to license these patents at all, much less under RAND. And again, MS has no monop…

You're getting hot and bothered about legal arguments that just aren't there. Other than alleging antitrust implications by Nokia and Microsoft cross-licensing patents from (between them) a dominant position in the mobile phone industry, there aren't any legal arguments about monopolies in this filing. 98% of this filing is about misapplication of patent law and bad patents. This has nothing to do with anti-trust oth…

Well I'd agree with you if not for the fact that Groklaw made anti-trust the central thesis of their blog entry, which is the article this thread is referring to.

Here's Groklaw's concluding sentence: "You know how for years I've told you that I expected that one day Microsoft's anti-Linux patent threats would be an antitrust matter? That day has come, at last, and while others have apparently caved to Microsoft, Barnes & Noble had the wisdom to refuse to sign an NDA, and so it is free to speak"

You may want to let them know that antitrust isn't really the crux here.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#19

Post by grellas »

Barnes & Noble is forced to fight this one from a position of relative weakness because it does not have its own patent portfolio from which to mount defensive counterclaims. The patent misuse theory works insofar as it goes, assuming it can be proved, but the evidence presented is sketchy and only time will tell on that one. This case, though, does illustrate that Android remains the waif child of the mobile device industry, the one who gets periodic beatings, whether from Apple, Oracle, Microsoft, or any other entrenched proprietary player, with software patents often serving as the whip. Meanwhile, Google is frantically scrambling to buy up its own patent portfolios and is filing its own patents like mad to position for the future. A fascinating spectacle, to say the least, and Groklaw once again gives us a front-row view of some of the goings on.

Re: Barnes & Noble Charges Microsoft with Misusing Patents

#20

Post by yardie »

kenjackson wrote: post #8
rbanffy wrote: post #6

Earlier quoted context omitted.

Intent is important. Microsoft is using those patents to disrupt an ecosystem it deems threatening to its need to (illegally) leverage its desktop OS monopoly into the mobile space in order to gain market share there. Android is a threat to Microsoft's desktop market because it furthers the trend away from PCs and towards mobile devices. Microsoft is also using its "war chest" to threaten less well financed players w…

That's a stretch. Especially since the largest players over to past decade haven't been attacked in this way by MS... Apple, Palm, RIM. In the tablet space even Android is a niche player compared to the iPad. Additionally until recently the Nook was pretty much just an eReader, with the most popular software client running on Windows. My point is this is a stretch, like any good conspiracy theory.

All of those companies have a large portfolio of patents. They haven't been attacked because they all have dirt on each other. Now that MS and Nokia have a new cross-licensing agreement, and think about how large the portfolio is of a combined MS+Nokia, they are starting to leverage it in very bad ways.

You should read it again. I think MS has gone out of there way to reinvent themselves as not that old Microsoft. But sometimes a maneating tiger really is a maneating tiger.

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