

Barnes & Noble pummels Microsoft patents with prior art - abennett
http://www.itworld.com/mobile-wireless/225615/barnes-noble-pummels-microsoft-patents-prior-art

======
jaaron
I truly admire B&N's approach, but they may have to take a lesson from Sun in
its early fight with IBM on patents [1]. It's not about these particular
patents. MS has thousands of patents and can keep playing this game
indefinitely. That's the shame of this system - it isn't about patents or
innovation, it's just a shakedown pure and simple.

[1] <http://www.forbes.com/asap/2002/0624/044.html>

~~~
brlewis
I don't know about indefinitely. At some point it may change. A good lawyer
may argue successfully against continued use of court precedents presuming
validity of granted patents. Presumption of validity is arguably out of place
given today's patent system.

~~~
monochromatic
> Presumption of validity is arguably out of place given today's patent
> system.

It comes from the statute though, so a court isn't really free to just ignore
it. Changing this presumption would take congressional action.

------
jfruh
It's kind of amazing that the company that is finally standing up against
insane, stupid patents is ... a bookstore. But perhaps it's because B&N
doesn't have any mobile patents of its own to defend?

~~~
jbigelow76
I was thinking the same thing, but I think it might have more to do with the
fact that B&N would have no other relationship with Microsoft as an OEM in
other markets.

Samsung, HTC, Dell, etc... all have other cross cutting businesses that could
influence whether they play ball with MS on issues like mobile patents, B&N
has no such constraints.

EDIT: In addition the Nook is probably the lone shining star in the B&N
business, they can't surrender a single point of margin if they don't have to.
If the Nook becomes untenable as a business B&N could become untenable as a
business and sooner or later they'll go the way of Borders Books.

~~~
atourgates
I keep hearing the idea that the Nook is B&N's last great hope, but I don't
buy it.

Every time I go in to a B&N physical store, it's packed. They're one of the
few stores I'll go to just for the experience of going in there. They're
relaxing. They're pleasant places to be.

Certainly, book sales face stiff online competition, but I find it hard to
believe that a company with 705 physical locations that people want to be in,
(plus 636 college book stores), can't find a way to make a profit even if the
Nook should fail.

~~~
aberkowitz
B&N sure is acting like the Nook is their last great hope.

My local store is renovating about 1/4 of their floor space to be occupied by
Nook products. When you walk in to the store, your are greeted by a
salesperson who asks if you are buying a Nook.

~~~
cheald
I'd imagine the margins on e-books are compelling enough to drive them to
really push them as the future of their business. The marginal production cost
on an ebook is the price of a few kb of bandwidth - practically free. I think
you'd have to be insane to not try to shift as much of your customerbase
towards electronic delivery as possible.

------
mhw
From the linked article:

> What's interesting to me, as a clear layman observer, is why Microsoft
> didn't know that it would be so easy to find so much evidence of prior art
> against these five asserted patents.

Obvious answer, based on experience of large organisations: Legal and
engineering are in different silos and don't talk to each other, except
through senior management with limited bandwidth and legal/engineering
understanding.

~~~
naner
I think it's more likely Microsoft knew and didn't care. These "obvious"
patents have been profitable for quite some time and once you are awarded the
patent the burden of proof (and legal costs) falls to the alleged infringer.

Also, take this with a grain of salt, but I vaguely recall reading somewhere
that using prior art in court to invalidate a patent is much more difficult
than we assume.

~~~
WalterGR
_I think it's more likely Microsoft knew and didn't care._

The parent to your comment - by mhw - is pretty darned close. At Microsoft,
legal and engineering are in different silos and don't talk to each other,
except through senior management with limited bandwidth and legal/engineering
understanding and also - in my experience, and to some extent - program
managers.

Developers (at least) are told not to look at patents or patent applications.
I'd be surprised if PMs were told differently.

Does MS Legal have engineers on staff to determine if something is worthy of a
patent and to look for prior art? That's a possibility. But your "more likely"
(granted - it's your opinion) doesn't seem incredibly likely (in my opinion.)

------
law
Invalidating patents with prior art isn't as easy as you might think. There
are two ways to do this: you can invalidate on novelty grounds (that is, the
invention was anticipated by a single piece of prior art) or non-obviousness
grounds (a combination of prior art essentially undermines the idea that the
patentee took an 'inventive step'). Only the claims in the patent are
considered when assessing novelty and non-obviousness. In the case of novelty,
a single piece of prior art must embody everything claimed in the patent,
whereas non-obviousness loosens this restriction. Non-obviousness claims are
typically far more difficult to prevail upon, which is why companies won't do
it more often.

For what it's worth, the relatively recent KSR v. Teleflex case gives us the
current opinion of the Supreme Court in non-obviousness battles. In that case,
they slid the scale back to favor the Graham[1] test for non-obviousness,
rather than the controversial teaching-suggesting-motivation test, which tries
to determine whether something in the prior art suggests the desirability of
combining the claimed subject matter, and thus its obviousness. Now, the
Graham test (which was a 1966 decision) allows for empirical evidence of non-
obviousness, to wit: commercial success, long-felt but unsolved needs, and
failure of others to invent the patented subject matter.

All of these are issues that need to be litigated in federal court, an
exceptionally expensive endeavor that no corporation will take without a very
strong incentive.

[1]:
[http://en.wikipedia.org/wiki/Graham_et_al._v._John_Deere_Co....](http://en.wikipedia.org/wiki/Graham_et_al._v._John_Deere_Co._of_Kansas_City_et_al).

------
meric
Barnes & Noble see moving into the tech industry as the next move for the
company, but because, as a company rooted in the business of physical books,
they lack a patent "moat" to protect themselves against other big tech
companies. It will be difficult for B&N to produce anything but low margin
commodity devices. Any differentiation from other devices will eventually drag
B&N into a patent battle. Their (possibly) declining physical book business
would make it hard to purchase a portfolio from a dying tech company.

One day, here comes Microsoft demanding from B&N a license fee per device for
some obvious patents. Since B&N is building a platform that sell high margin
products (e-books), the license fee is likely to be affordable....at least
until Amazon comes along with patents for a "online bookstore"... Yet... What
a perfect opportunity to rack up a storm, raising awareness of the ridiculous
patents owned by existing companies!

It is in B&N's interest to devalue existing patent portfolios of their current
and future competitors in the tech industry, and they are trying to do exactly
that. Even if the plan fails and politicians are unmoved, future tech
companies may think twice before threatening B&N with a patent lawsuit... B&N
is actually going to bother to find all the pieces of prior art!

We shouldn't be surprised a _bookstore_ is fighting against software patents,
because we know an existing technology company, with software patents valued
at billions, are definitely not going to do it. It had to be a large company
that could afford such a fight but the large company had to not have invested
heavily into a technology business. Companies with no stake in a technology
business would have no interest in demolishing software patents... unless it
is _moving_ into it. What companies making such a move? A company that is
facing a fast declining market for its products.[1]

Such a company can only be a bookstore. [2]

[1] If it wasn't fast declining, they wouldn't be doing anything. Imagine
putting a frog in a slow cooker, compared to putting a frog in boiling water.

[2] It could have been a company in the music industry... but I think it might
be too late for those guys. All they can do is try to hang on to what they've
got.

------
IgorPartola
Somewhat off topic, but why are the licensing fees that MS is demanding
redacted from the cited documents? Are these not public records?

~~~
nkassis
I think but IANAL that those are considered trade secrets.

