

 Barnes & Noble Exposes Microsoft's Trivial Patents and Strategy Against Android - nextparadigms
http://groklaw.net/article.php?story=2011111122291296

======
nextparadigms
So let me get this straight. Not only does Microsoft have useless/trivial
patents, but they shouldn't have gotten them in the first place because of
prior art. Plus, with those patents they get to claim a license fee as large
as the license fee for their whole OS - WP7. On top of that with those useless
patents they get to act as if they owned the whole of Android, and get to
dictate manufacturers how to make their Android phones?

I have no words for Microsoft, they're simply despicable and I don't know how
anyone could support such a company that has proven time and time again they
will adopt such tactics to destroy their competition. They've probably done a
lot of this behind the scenes with Linux and other browsers before. We just
didn't find out about most of it. And we almost didn't find out about this,
either, if it wasn't for B&N.

But what I don't understand how could HTC, Samsung and all the others agree to
this so easily? HTC has grown 3x every year for the past 2 years because of
Android, and Samsung has become the largest smartphone manufacturer surpassing
both Nokia and Apple thanks to Android, and they say nothing against Microsoft
or try to protect the ecosystem that's been feeding them?

Shame on them for not standing up to Microsoft, and kudos to B&N, which wasn't
even a manufacturer not too long ago, for having the guts to stand up
Microsoft and protect the Android ecosystem.

~~~
raganwald
Time and time again I’ve read people lauding “The New Microsoft,” the company
that created XBox and Mango, the company that no longer behaves like the old,
nasty monopolist of old. Such plaudits remind me of someone who is dating a
wonderful man who has been divorced four times, but this time it’s going to be
different.

~~~
cooldeal
Interesting that the tone here when it's Apple suing over flimsy multitouch,
pinch-to-zoom and design patents that look like a rectangle(and demanding that
they stop production, not even ask for a licensing fee) is they're protecting
their innovation, but when it's Microsoft it's all about a evil monopolist.

Reminds me of the argument that Apple's winning because they derive the most
profit out of the phone business inspite of Android's marketshare, but
Apache's winning in the web server business inspite of Microsoft making the
most money out of it.

~~~
betterth
Don't obfuscate reality to lend credence to an all-too-familiar anti-Apple
rant.

Microsoft is utilizing ridiculously old, unrelated patents to force Android
manufacturers to pay up.

Apple is using designed in house, relevant and modern patents against what it
feels is intellectual property theft.

What's the difference?

Apple is suing companies for what it feels is unfair use of the technology
that Apple feels it made.

Microsoft is simply forcing companies to pay huge fees for using software that
Microsoft never made and has no claim to.

~~~
rplnt
> Apple is using designed in house, relevant and modern patents against what
> it feels is intellectual property theft.

You must be kidding, right?

------
brlewis
_As always, if you shouldn't look at patents, don't click to read the rest of
the article._

Groklaw is right to write that. If you write software that will ever be in the
public eye, you shouldn't look at software patents because they make you more
liable for damages in infringement cases.

The constitution authorized congress to create a system "to promote the
Progress of Science and useful Arts" by publishing information that innovators
would _want_ to look at. The system we have now hinders progress, not just in
corner cases but across the entire software field.

Can you imagine anyone writing that sentence if we had a patent system that
worked as intended? I can't. If the patent system promoted progress,
innovators would _constantly_ be reading patents.

~~~
bergie
I've yet to read a patent that actually contains useful information. I'm sure
they're out there, but generally they seem to be written in as obfuscated and
generic way as possible, as their sole purpose is to enable litigation.

~~~
Jach
You might be safe with reading expired patents, but don't take my word for it.
I do sometimes and get a kick out of it. Where would we be without a patent
for a "Baseball cap for pigtail hairstyles"?
<http://www.latepatents.net/5799334.htm> (Their site seems to be dead in
places, but you can still browse through a few of them with google
<https://www.google.com/search?q=site:latepatents.net> )

Academic papers at Arxiv and elsewhere are far more useful.

------
Igor_Bratnikov
As someone that has been on the defending side (legal representative) of a
patent troll attack which is essentially the role MS is playing here it
saddens you to see how low people can go with using the patent system. One of
the case I analyzed was a patent that literally did not cover the technology
and only a very loosely interpreting judge could interpret it as so. But the
cost (at least 0.5 - 1 million dollars until a judge will even see your
argument) are so staggering that we in fact encourage parties to throw around
bs patents to racketeer money from parties that actually contribute positively
to society by creating innovative products. Of course this also fuels the
market for filing and selling/buying up bs patents.

The only way I can describe it is that its like a artery of someone that keeps
eating bacon long after their doctor advised them to stop. The space keeps
getting blocked up more and more. It is inevitable that serious problems are
bound to occur and cause ever greater friction to innovation.

~~~
fpp
With direct patent troll cost (loss of company values) calculated for the last
years by BU at about half a trillion plus blocking of innovation, loss of jobs
and indirect costs to companies at one point society has to question the
priorities: To make (very) few much richer and loosing whole industries or to
create an environment where the whole economy can prosper. History has some
good examples on that e.g. from the first industrial revolution that was led
by the UK. After Prussia / Germany completely relaxed IP laws it became the
leading industrial nation in Europe. The UK where strong special interest
groups pushed through stringent IP & patent law lost it leadership role &
dominance of the industry and has till today not been able to recover from
that.

On patent trolls & the 500 billion: The Private and Social Costs of Patent
Trolls (<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930272>)
Abstract: In the past, non-practicing entities (NPEs) - firms that license
patents without producing goods - have facilitated technology markets and
increased rents for small inventors. Is this also true for today’s NPEs? Or
are they “patent trolls” who opportunistically litigate over software patents
with unpredictable boundaries? Using stock market event studies around patent
lawsuit filings, we find that NPE lawsuits are associated with half a trillion
dollars of lost wealth to defendants from 1990 through 2010, mostly from
technology companies. Moreover, very little of this loss represents a transfer
to small inventors. Instead, it implies reduced innovation incentives.

~~~
Igor_Bratnikov
Its quite the chance that that paper on Patent trolls was written by my Patent
Law Prof from BU. Who takes in mind a well balanced view on this difficult
subject.

Also some great TIL about German vs Uk innovation.

Even most patent attny's that are more than happy making money off this broken
systems excesses agree that there many serious problems abound

------
3am
They are a known, serial monopolist and at this point MSFT deserves the
corporate death penalty. They should go ahead and force the company to split
into consumer software, enterprise software, Windows, and hardware companies
like the should have done more than a decade ago.

EDIT: A well reasoned rebuttal is worth a thousand downvotes. But my fault for
getting involved in religious wars...

EDIT: I also want to note that whoever is doing this is not content to
downvote this comment, but is also looking up my comment history and
downvoting old comment of mine (fair warning to anyone posting in this thread)

~~~
nkurz
3am: are you sure that your old comments are being downvoted? For a normal
user, the "down arrow" option disappears after a day, and it doesn't look like
you have any recent comments other than this one. So if they are indeed being
downvoted, it's being done by someone with more access than a standard user.
This seems unlikely, although not impossible.

------
monochromatic
This is a court filing by a litigant. It's hardly an unbiased source. The
assertions of an interested party should not be an excuse to avoid critical
thinking.

But hey, it's in line with what most of HN thinks about patents, so we're all
willing to take it at face value.

~~~
corford
To be fair I think it's more that we're willing to take PJ at face value

~~~
monochromatic
> Take a look especially at Exhibit D, where there is a long detailing of the
> incredibly insignificant patents Microsoft has the nerve to use against
> Android, claiming control of the entire operating system with what is pretty
> much a handful of stupid patents no one really needs or which are so trivial
> that the fees it claims become outrageous. _At least that is Barnes &
> Noble's position. It made my blood boil to read it._

Doesn't sound like pj is doing much critical thinking either. Just accepting
B&N's assertions at face value, because they line up with common "knowledge"
about patents.

~~~
nitrogen
There should be elements of B&N's assertions (like which specific patents
Microsoft is using) that can be regarded as factual.

~~~
monochromatic
Absolutely. I have no problem stipulating to stuff like that, because it would
be ridiculous for B&N to lie about it or get it wrong. But that's not the kind
of assertions I'm talking about.

------
jongraehl
This is a legal denial of service attack (assuming B+N's story is
substantially accurate). I wonder what kind of penalties are for that behavior
- I assume being ordered to pay the other side's legal bills is a possibility.

------
Bud
It's pretty sad that Microsoft has sunk this low: a company that is so afraid
of its ability to compete honestly in the market that it becomes a multi-
billion-dollar patent troll.

------
scotty79
I'd very much liked if someone called bullsh*t on the Microsoft's patents and
then prepared joint lawsuit of all companies against Microsoft's "agreements".
They look more like racketeering than cooperation.

------
vijayr
If I want to sue someone for my (alleged) patents, why not make me pay the
legal costs for both sides, _as the case goes to court_ (not after), until the
case is decided one way or the other? that way, if a big fat ass company sues
a small guy, the small guy can at least try to fight in court. May be he'll
lose, but he'll at least have a chance to fight - it'll also make these big
guys think a bit before suing for patents?

------
kenjackson
MS has no obligation to license their patents at a reasonable price or even at
all. You may say the patents should be overturned, but that's a question for
the USPTO and the courts. Their job is to maximize profits using their
patents.

It's still very unclear to me what MS is doing that is illegal. They have no
mobile monopoly. And "demanding" design guidelines certainly isn't illegal.

BN can sue because MS isn't nice to them, but that's about all I see.

~~~
rbanffy
The problem is not that they have a monopoly on mobile (having a monopoly is
not illegal), but that they are using their monopoly of desktop operating
systems to exert pressure on competitors in another market (via the FAT
"requirement" - because if you don't use FAT your gizmo won't work with 90%+
of the computers sold). This can be interpreted as abusing a monopoly.

Another way to see it is that Microsoft is one of the richest companies on
Earth _because_ of their monopolies and when they use their prodigious
resources to force companies to cave instead of litigate (because they could
easily litigate said companies out of existence) it's an indirect abuse of
monopoly.

This is what I though on about 5 minutes. There's probably a whole lot more in
there waiting for more dedicated brains.

~~~
jimbobimbo
Not defending the patent for FAT - nobody prohibits device OEMs shipping a
piece of software that manages data on the device without requiring the FAT to
be present.

~~~
rbanffy
Those devices will offer a more complicated experience because they have to do
something Microsoft doesn't have to because they have the desktop OS monopoly
creating a competitive burden to everyone else. Looks like leveraging a
monopoly on one market to gain advantages on another to me, even if it is a
subtle way.

All they have to do to leverage their desktop-related monopolies is to sit
tight and do nothing. And that's why it's really bad.

~~~
jimbobimbo
It worked out for Apple/iTunes just fine. I don't like this approach (and do
not buy i-devices for that reason), but it is quite viable if executed right.

~~~
rbanffy
Before the iPhone, every iPod used on PCs had to be formatted with FAT, so
it's fair to say it didn't work until iTunes had a critical mass.

If it's hard for Apple, you can imagine it's much harder for everyone else.

------
Senthee
M$ needed to use all their ammo to counter Android. It already crossed 52%
marketshare <http://www.gartner.com/it/page.jsp?id=1848514>. I am able to see
their (M$) desperation but it never going to help them.

------
fpgeek
I love that B&N's lawyers cited Netscape Navigator 2.0b3 as prior art (with
respect to background image loading in a web browser). I wish HTC and
Samsung's lawyers were as clever with respect to Apple's bogus "Linkify"
patent ("Live URLs" from 2.0b1 in that case).

------
civilian
Cool! I'm going to try to do more Xmas shopping at B&N this season.

------
ianstormtaylor
Good luck finding developers for WP7...

------
newgrad
tl;dr, anyone?

~~~
DanBC
B&N's Nook used Android. MS claims to have patents that cover Android stuff.
MS wanted B&N to pay licence fees for that patented technology. B&N wanted to
find out what exactly was covered. MS claimed that to disclose that
information (which is in a public patent) they'd have to get B&N to NDA.
Eventually, a list of patents arrive, and they're all for tiny stupid trivial
stuff or for really old stuff; yet MS was trying to charge for them as if they
were worth a full OS.

See this PDF for a list of the trivial patents:

(<http://www.groklaw.net/pdf3/675085-463533.pdf>)

------
recoiledsnake
From B&N's filing:

>Microsoft has shown its intent to drive out other open source software using
overaggressive patent enforcement. The Microsoft dominated MPEG-LA consortium
recently sent out a request for patents that would cover Google's VP8 video
codec, and one company has already filed a private antitrust complaint against
MPEG-LA for this behavior.3 MPEG-LA is a patent pool organized to collect and
license patents on the H.264/MPEG video codec, a method of digitally encoding
video files and decoding them for playback. Google is attempting to introduce
its own codec, the VP8 codec, to compete with the MPEG codec. Once again, by
seeking non-essential patents to assert offensively rather than defensively,
Microsoft intends to drive out competition from open source developers.

Is MPEG-LA really dominated by MS in any sense of the word? Just curious.

MS seems to be actually paying them more for licenses in the end than what
they get for a few patents they have in the pool. Not sure about Apple.

In any case, they're supporting VP8/WebM via user installed plugins in IE and
have stated that they're not shipping it with the OS because they're afraid of
patent trolls suing them for very high damages because they would be liable
for hundreds of millions of Windows licenses.

~~~
ajross
Isn't the fact that their funding comes disproportionately from Microsoft (I'm
just assuming you're right, obviously I don't have numbers) and argument _for_
the MPEG-LA being "dominated" by Microsoft? They need MSFT more than it needs
them.

~~~
recoiledsnake
>Isn't the fact that their funding comes disproportionately from Microsoft

I never stated that their revenue comes disproportionately from Microsoft.
What I stated was that Microsoft pays them more than what Microsoft gets from
it for Microsoft patents in the pool, which is a completely different thing.

~~~
ajross
Um... isn't that exactly what "disproportionate" means?

~~~
recoiledsnake
I think there's a communication gap here. Let me try to explain with some made
up numbers.

Lets say Microsoft pays the MPEG-LA $50 million/year and gets back $2
million/yr for their patents. So net payment to MPEG-LA is $48 mil/yr.

But MPEG-LA has a LOT of other licensees like Apple that licenses it for
Quicktime, iMovie, all OS X and iOS devices, Google for YouTube, Adobe for
Flash etc. etc. Lets say they all pay them $452 mil/yr. So total revenue of
the MPEG-LA is $500mil/yr but Microsoft's share is not disproportionately
large in that number.

I don't know about MS's share in MPEG-LA's revenues, all I stated was that
they paid them more than what they got back in licenses.

~~~
ajross
Yeah, this is a communication issue. When I said "disproportionately", you
apparently heard something like "predominately". But that's not what I meant.

The point is that MSFT might pay more into the MPEG-LA than it gets
_precisely_ so it can influence the MPEG-LA to take actions that are
beneficial to Microsoft's other business interests. You are apparently trying
to take that same fact and argue in the opposite direction, and I don't think
the logic works that way.

~~~
recoiledsnake
>The point is that MSFT might pay more into the MPEG-LA than it gets precisely
so it can influence the MPEG-LA to take actions that are beneficial to
Microsoft's other business interests.

I don't see how it's Microsoft's choice to pay more or less. The terms are
pretty clear and the same for all.

I also don't see how paying more will allow it to have more influence on the
MPEG-LA, they're more like a customer. That's a pretty torturous argument to
make.

~~~
grhino
MPEG-LA needs to keep Microsoft as a customer. Your biggest customer often has
more influence on your business model than your smallest customer. If
Microsoft can show they are willing to make moves to no longer be a customer
of MPEG-LA, MPEG-LA will make moves to show that Microsoft should continue to
be a customer.

~~~
recoiledsnake
Maybe, but is Microsoft MPEG-LA's biggest customer?

------
cooldeal
Groklaw used to be good a while ago, but now seems to have degenerated into
extreme bias against Microsoft. We do not see such articles written by PJ on
Apple, for example. While they're still interesting, they need to be taken
with a large dose of salt.

~~~
pyre
I'm curious. Specifically which part needs to be taken with a grain of salt?
Most of the information is straight from court filings.

Are you claiming that Barnes & Noble is perjuring themselves and Groklaw is
helping to spread the misinformation?

~~~
brudgers
I think the comment relates to the caution one might wish to use when
evaluating the selection of information for presentation given that there is
some evidence of an editorial bias on the part of Groklaw, e.g.:

 _"incredibly insignificant patents Microsoft has the nerve to use against
Android"_

