Barnes and Noble has filed counterclaims against M$ asserting that M$ “is misusing these patents as part of a scheme to try to eliminate or marginalize the competition to its own Windows Phone 7 mobile device operating system posed by the open source AndroidTM operating system and other open source operating systems. Microsoft’s conduct directly harms both competition for and consumers of eReaders, smartphones, tablet computers and other mobile electronic devices, and renders Microsoft’s patents unenforceable.”
Further, Barnes and Noble describe M$’s actions as trying to tax the world of IT:
“3. Microsoft did not invent, research, develop, or make available to the public mobile devices employing the AndroidTM Operating System and other open source operating systems, but nevertheless seeks to dominate something it did not invent. On information and belief, Microsoft intends to take and has taken definite steps towards making competing operating systems such as the AndroidTM Operating System unusable and unattractive to both consumers and device manufacturers through exorbitant license fees and absurd licensing restrictions that bear no relation to the scope and subject matter of its own patents.
4. On information and belief, to perpetuate this scheme, Microsoft and its agents, including spokesman and chief executive officer Mr. Steven Ballmer, have publicly stated that through its patents Microsoft can dominate, control, and exclude from the market the AndroidTM Operating System, other open source operating systems, and open source applications such as Google Chrome. These statements are unjustified in view of the scope of Microsoftâ€™s patents. Moreover, neither Microsoft nor Mr. Ballmer has ever identified to the American public the basis for these grand assertions of dominance.”
Further, Barnes and Noble accuses M$ of using NDAs to hide its claims during negotiations in order to keep the FUD strong.
“Barnes & Noble and Microsoft then met on July 20, 2010, at the New York offices of Barnes & Noble.com. The meeting was attended by Dick Greeley, Director of Licensing for the Microsoft Intellectual Property Licensing Office, Carl Brandt, Associate General Counsel for IP and Litigation for Microsoft, Tony Astarita, Vice President of Product Development for Barnes & Noble.com, Bradley A. Feuer, then Acting General Counsel of Barnes & Noble, and outside counsel for Barnes & Noble. 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.”
Further, the magnitude of “the tax” was more than M$ charges for a licence for Phoney 7:
“After sending the proposed license agreement, Microsoft confirmed the shockingly high licensing fees Microsoft was demanding, reiterating its exorbitant per device royalty for NookTM, and for the first time demanding a royalty for Nook ColorTM which was more than double the per device royalty Microsoft was demanding for NookTM. On information and belief, the license fees demanded by Microsoft are higher than what Microsoft charges for a license to its entire operating system designed for mobile devices, Windows Phone 7.”
Further, Barnes and Noble assert that M$ misled USPTO by not disclosing prior art in the field as they are required by law. This taints M$’s entire patent portfolio.
You can read it all at GROKLAW.
Thus the mighty giant of IT has become a patent-troll, suing the world claiming ownership to stuff it does not own and attempting to enslave the world by taxing other people’s products. No doubt this case will drag on for most of a decade while the rotting corpse of M$’s dominance in IT stinks up the place.
It sounds to me like Barnes and Noble intends to fight and is unlikely to accept a settlement on M$’s usual terms. The attempt to use NDAs to suppress information about the patents in dispute is absolutely disgusting. If there were a proper case of infringement of patents, the patent holder has a duty to disclose the infringement to prevent the world from infringing or continuing to infringe. This is not about patents but an attempt to stifle competitioin. The tyrant has no clothes.
UPDATE A blogger has written an article on how a “software-patent” may be reduced to mathematics.
That is higher-level stuff. It becomes even more obvious when viewed in Assembler with a one-to-one relation to machine-language. Computers are logical processors. Programmes are lists of logical operations. Structures are just patterns of bits.