19
Nov
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Things are getting a bit more interesting in the ongoing fight between Microsoft and Barnes & Noble. You'll remember that earlier this year, Microsoft began suing B&N for refusing to fork over Android-related fees from the Nook Color. Barnes & Noble has responded, alleging in its motion that Microsoft "is using its licensing practices to improperly broaden the scope of its patents in an attempt to dominate mobile operating systems such as Android that threaten Microsoft's monopoly in personal computer ("PC") operating systems." It may sound odd at first that Microsoft would be at Android's throat over PC operating systems, but indeed, it was recently discovered that Microsoft attempted to compel Google to provide its Android strategy, including information about Android's current abilities as a PC platform.

The maker of the Nook, Nook Color, and, most recently, Nook Tablet has provided a supplemental compilation of artwork (which, believe it or not, includes entries related to things as old as Netscape and Mosaic), and is also seeking a letter rogatory to get evidence surrounding MOSAID, a Canadian firm in cahoots with Microsoft and Nokia in patent misuse. MOSAID has already indicated that it will not give anything up willingly.

For those without a legal dictionary handy, a letter rogatory is essentially an international subpoena in which a US court makes a request to an international entity. It's important to note that letters rogatory are requests, not demands, so they may or may not be fulfilled. If you're wondering why Barnes & Noble is asking for the letters, just take a look at the memorandum attached to B&N's request:

Barnes & Noble seeks documents and deposition testimony from MOSAID Technologies Incorporated (“MOSAID”), a patent licensing company, to be used at trial to defend against the allegations made in Microsoft’s complaint in this proceeding. Specifically, as part of Barnes & Noble’s affirmative defense of patent misuse, Barnes & Noble seeks the evidence requested in order to prove that Microsoft is improperly expanding the scope of its patents in an attempt to dominate mobile operating systems such as the AndroidTM Operating System (“Android”) that threaten Microsoft’s monopoly in personal computer operating systems. On information and belief, to further that strategy, Microsoft and Nokia Corporation (“Nokia”) and MOSAID recently entered into a series of agreements transferring approximately 2,000 Nokia patents to MOSAID in exchange for MOSAID’s efforts to license those patents (or sue those that do not take a license) and promise to pay approximately two-thirds of any royalties back to Microsoft and Nokia. Microsoft had previously entered into partnership agreements with Nokia, whereby one of the stated motivations for this partnership was to combine the parties’ respective patent portfolios and to coordinate their offensive use of patents to drive out open source operating systems, including Android specifically. Such conduct constitutes patent misuse, which renders the patents at issue unenforceable.

On October 20, 2011, the Commission granted Barnes & Noble’s application for issuance of a subpoena duces tecum and subpoena ad testificandum requiring MOSAID’s United States subsidiary (MOSAID Corp. Ltd.) to produce documents and submit to a corporate deposition about the topics described in the Letter Rogatory, among others. In an e-mail with Barnes & Noble’s counsel on November 7, 2011, MOSAID Corp. Ltd.’s counsel stated that, “the transactions for which Barnes & Noble seeks related documents and information from MOSAID involved MOSAID’s parent company, MOSAID Technologies Incorporated, not the US subsidiary,” and that MOSAID would not voluntarily produce the requested documents but rather must be served with a separate international subpoena. On November 8, MOSAID moved to quash and/or limit Barnes & Noble’s subpoenas, arguing, in part, that the subject transactions involved only the parent company and not the U.S. subsidiary and that Barnes & Noble was improperly attempting to obtain “documents and information in the possession of MOSAID’s foreign parent company” from MOSAID’s U.S. subsidiary.

Accordingly, Barnes & Noble respectfully requests that the Administrative Law Judge grant Barnes & Noble’s application and recommend that the United States District Court for the District of Columbia issue Barnes & Noble’s Letter Rogatory to the appropriate judicial authority in Canada for international judicial assistance pursuant to Section 43 of the Canada Evidence Act or Section 60 of the Evidence Act of Ontario.

Basically, B&N sought the same information from MOSAID's US subsidiary, and the company, MOSAID Corp Ltd., responded that they would not relinquish any information willingly, because it was the business of their Canadian parent company. Barnes & Noble clearly has no qualms about discussing the impact of MOSAID's dealings with Microsoft and Nokia, outlining the deal's gravity in their motion for a letter rogatory, which cites a series of videos in which execs from Nokia and MOSAID discuss the gravity of the Microsoft/Nokia deal, MOSAID's patent acquisition, and a statement by MOSAID's CEO "that litigation is 'highly likely' against potential licensees who fight the portfolio before being 'convinced to pay the sums that [MOSAID] will be asking for.'"

With Quinn Emanuel joining Barnes & Noble's retinue of law firms aiding in defense, it is clear that the makers of the Nook family won't back down in the face of Microsoft or MOSAID. For more information, and links to B&N's compilation of prior art, MOSAID videos, and relevant bygone cases, check out Groklaw's take on the subject here.

Liam Spradlin
Liam loves Android, design, user experience, and travel. He doesn't love ill-proportioned letter forms, advertisements made entirely of stock photography, and writing biographical snippets.

  • Matt

    Where is AP's legal article writer?

    • http://www.AndroidPolice.com Artem Russakovskii

      Probably drunk in a corner somewhere.

      • Jon Garrett

        +1

        lol, you're crazy.

  • Mgamerz

    You show em' B&N!

  • Phil

    I knew the gig would have to be up for MS eventually. All thats done in the dark will come to light. Now I wonder will some of the others start to pile in if possible if they see this going B&Ns way. I know they'll feel stupid for paying MS money if B&N blows this whole case out of the water.

    On another note I get this overall feeling that all the games being played by MS and Apple against Google are on the verge of backfiring in a major way. B&N may end Microsofts fight and Google's purchase of Moto may stop Apple in its tracks by the looks of the case in Germany. If Oracle also fails then Android is left unchecked and those that wasted time in court will be to far behind to try and catch up. For MS their worst fears will be realized. Android will find its way bottom up into the PC or so called post-PC to the de facto level. I already see general tech sites calling it the defacto mobile OS.

  • Lyndon Boychuk

    Down with patent trolls. I hope Microsoft and Apple fall big time, and then maybe they will focus on innovation and come up with products people want.

  • Lyndon Boychuk

    This isn't about patent infringement, its about Microsoft (and Apple) refusing to die without a fight. It's actually quite sad to watch...and makes me embarrassed to own a pc running windows, and I refuse to buy any fruit based products like Apple or Blackberry due to their poor shelf life and inferior products. (I'm looking forward to porting Android to my pc, and if that fails I will be buying an Android tablet).

  • kodakball

    This is not as bad as "Amazon's 13-year patent battle to own "one-click purchasing""
    it is the stupidest thing I ever heard. I found a podcast talking about it 23 minutes, it worth a listen to see how crazy our laws are getting around the world.

    http://feeds.tvo.org/~r/tvo/searchengine/~3/mhIKXILr2hk/800884_48k.mp3

  • kissmyassMicrosoft

    mosaid, another fucking troll company. can't someone just b*mb them

    • http://About.me/DarknesSx DarknesSx

      DELETED MY COMMENT.

  • kissmyassMicrosoft

    i swear if b&n win, im going to buy 100 books from them

  • L boogie

    Wonder what the future would hold for Microsoft & windows 7/8 when B & N wins this fight..... Also, what would happen to their licensing agreements with other OEMs such as HTC, Samsung etc

  • Lyndon Boychuk

    Maybe it's time for a mass boycott on Microsoft and Apple products?

    • Ken

      a big +1 for this = organise a global day of action where no one buys a windows pc or mac :)

      • Lyndon Boychuk

        Spread the word and let's make this happen.

    • Jon Garrett

      Im already boycotting apple. I dumped my iPhone 4 and got the Galaxy S II, as for boycotting MS, MS is the only PC OS Ive ever used going all the way back to DOS 4.0 so it would be impossible for me to use any other. all I can do to hurt MS is by getting MS software from to**ent sites.

      • Lyndon Boychuk

        Every little bit helps for sure. My pc came pre-installed with windows 11 years ago so I have no other choice either right now. If we do what we can to limit what they make from their own products that's what matters.

        • Marc

          I purchased a netbook that came pre-installed with Windows Vista. When setting up the computer, I clicked no to the EULA and promptly called the company for a refund on the software. After a lengthy battle with their customer service, a free ride for the computer back and forth so they could remove the software, I had a fresh computer sans Windows and a small cheque/check for the OS refund. Now running Ubuntu for free.

    • Vanessa

      I'm in :). I was going to buy a Lumia 800, but will now buy a Galaxy Nexus + 2 x Nooks.

  • Calvin

    The Past.
    Microsoft and apple had there fight a long time ago and after it was all said and done both of them knew they would not go down with out a fight...

    The Now Factor.
    because the fight with with Apple Microsoft ended with a draw, and with no real threat out there they was happy.. until Google+Android came in to play, now that Android had a better hold on Mobil space then "iOS" and "Win phone" they are getting mad/scared that there time has come. (lol)

    The Future Outlook. (outlook! M$ joke there)
    Will google move android in to the PC world? you bet you last fish they will, because look at Chrome OS, that thing is just a striped down android OS.
    what do you think will happen when Google gets serious with Android as a PC OS system, it will be the end of a era.

    The Last Words.
    Have any one wondered why Windows 8 for PC look like what android would look like as a PC OS? hmmmm seams like some "Tom Foolery" going on here

  • TL

    What a dumb ass website, lol...

    • Lyndon Boychuk

      You loser. Go back to playing with your fruit phone before your mom takes it away (don't interupt when grown-ups are talking).

    • WSU

      TL is a stupid troll!

    • tarek

      If this website is stupid then why are you lurking it go away you fruit based follower quick before the fruits expire

    • Sean

      IKR , the dumbiest

  • Greg

    MS is in the 1%.

    Time for people to stand up and tell them enough is enough.

  • anhmel

    Patents should be abolished!

  • BleedingEdge

    Microsoft, Nokia and Apple are starting to look like the poster children for big corporate greed and manipulation. This is just the stuff that's come to light. I wonder how much innovation they've snuffed out and what the tech world might look like were it not for this sort of BS. All my PCs are dual-boot Wind-Ho's and Linnux. I'm begginning to consider life without Microsoft as a result of this crap.

  • BleedingEdge

    I've been considering either buying a Nook Color Tab or a Kindle Fire because they're both in my price range, now I'm leaning towards the Nook. I'd love to see a "Who Needs a PC?" ad slogan come out just in time for the holidays to be used by B&N, Amazon, Motorola, Acer, Asus, HTC and Samsung. Each does their own ad, but mentions the slogan sometime during the message. I wonder how much they as a group could cost Microsoft and Apple?

    • NotAProfessorChris

      Don't forget the ASUS, Acer and Samsung make a fair chunk of cash out of the PC / Laptop market still. They won't want to ruin that. That's the problem. They may lose a bit of cash from each phone paying fees for Android but they make that back with all the Windows powered PC's. I'd assume so anyway.

      • Lyndon Boychuk

        That is true, but with Android evolving into a viable OS alternative to Windows and now the introduction of laptop and tablet docks, there are more reasons to incorporate Android now than before. Some of these OEM's have been saved from the brink of bankruptcy and really made a name for themselves because of Android. People want customization and the ability to make their own choices based on their own unique needs...something that isn't an option elsewhere outside from Android.

  • http://fixpcblog.com/ Paul S Brookman

    After watching Google's 'FREE' Mobile OS 'Android' in its expanding conquest of the Smart Phone Market, despite the BS MS has been pulling, I am really glad to see someone with the Stones to stand their ground and say 'NO MORE'!

  • Kindroid

    I am going to give gift cards to Barnes & Noble to my family members this Christmas season....David deserves our support against Goliath....

  • Lyndon Boychuk

    Anyone on this thread have a page or group devoted to boycotting Microsoft and/or Apple yet? I'd love to be a part of it as I figure out what I want to do.

  • tom

    Wohoo! This great if Barnes and Nobles wins this, I will also continue to be a life long customer! Go Barnes and Nobles kill the evil greedy Microsoft and take Apple too while your are at it, neither company will be missed.

  • David S.

    Occupy Microsoft & Apple, lol