Thursday, April 28, 2011

Barnes and Noble to Microsoft: shove it

Microsoft filed a suite against Barnes & Noble for alleged patent violations in their Nook reader - they take exception to the open-source Android OS that powers the Nook. Rather than humbly submitting, B&N has fired back a blistering response (PDF). You can read more about it on Groklaw. Most outstanding move was B&N's steadfast refusal to sign a NDA (non-disclosure agreement), which Microsoft insisted on before outlining the specifics of their complaint against them.


Here's a sample from B&N's response:

  • On information and belief, to perpetuate this scheme, Microsoft and its agents, including spokesman and chief executive officer Mr. Steven Ballmer, have publicly stated that through its patents Microsoft can dominate, control, and exclude from the market the AndroidTM Operating System, other open source operating systems, and open source applications such as Google Chrome. These statements are unjustified in view of the scope of Microsoft's patents. Moreover, neither Microsoft nor Mr. Ballmer has ever identified to the American public the basis for these grand assertions of dominance.
  • Without support or justification, Microsoft has communicated to the public through press releases and other public statements (including press releases relating to this very action) that the AndroidTM Operating System generally infringes Microsoft's patents, and that all device manufacturers employing the AndroidTM Operating System must either pay Microsoft's exorbitant licensing fees or face costly and protracted patent infringement litigation.
  • ...At the meeting, Microsoft alleged that the NookTM infringed six patents purportedly owned by Microsoft. Microsoft had prepared claim charts purportedly detailing the alleged infringement but insisted that it would only share the detailed claim charts if Barnes & Noble agreed to sign a non-disclosure agreement ("NDA") that would cover the claim charts as well as all other aspects of the parties' discussions. Noting that the patents were public and that the infringement allegations pertained to Barnes & Noble's public product, Barnes & Noble refused to sign an NDA. Insisting that an NDA was necessary, Microsoft discussed the alleged infringement on a high- level basis only. Microsoft nevertheless maintained that it possessed patents sufficient to dominate and entirely preclude the use of the AndroidTM Operating System by the NookTM. Microsoft demanded an exorbitant royalty (on a per device basis) for a license to its patent portfolio for the NookTM device and at the end of the meeting Microsoft stated that it would demand an even higher per device royalty for any device that acted "more like a computer" as opposed to an eReader.
Microsoft proves once again they are the monopolistic choads they've always been - attempting to accomplish with their lawyers what they can't with their marketing people (never mind their software engineers). Barnes & Noble has asked for a jury trial - which ought to be fun.

I think I'll go buy a Color Nook just as a show of support.

A tip o' the hat to Groklaw for posting and to Slashdot for publicizing.

No comments: