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Barnes & Noble 'Throws the Nook' at Microsoft

Barnes & Noble rolled out its legal defense brief on Monday, rebutting all of Microsoft's patent infringement claims.

Microsoft has alleged five violations of its patents by B&N's Nook electronic book reader and Nook Color Tablet devices, as described in a lawsuit filed last month. The lawsuit also names B&N's device partners, including Foxconn International Holdings and Inventec Corp.

Barnes & Noble wants the charges dismissed in a jury trial, with the court costs to be paid by Microsoft. The B&N defense brief (PDF, accessible courtesy of Groklaw) is unsparing of Microsoft's allegations. The brief accuses Microsoft of abusing the U.S. patent system and legal system to attack Android, the open source mobile operating system that competes with Microsoft's Windows Mobile and Windows Phone OSes.

The Android OS, largely fostered by Google, is used in B&N's Nook devices, as well as in various smartphones and other mobile devices produced by hardware manufacturers. Android recently hit the No. 1 position for smartphone use in the U.S. market.

The B&N defense brief describes Microsoft's patents in the case as "five insubstantial and trivial features." It suggests the patents may be on shaky legal ground.

"The subject matter embraced by the '372, '780, '522, '551, and '233 patents was not new and would have been highly obvious at the time those patents were filed," the B&N brief states.

Microsoft's royalty demands are "exorbitant" for Nook, according to the B&N brief. For the Nook Color Tablet, the royalty charges are double what Microsoft charges for Windows Phone 7, it adds. The brief bluntly describes Microsoft's aims in the lawsuit, which is to thwart Android in the marketplace, according to Barnes & Noble's attorneys.

"Indeed, Microsoft 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 Androidâ„¢ operating system and other open source operating systems," the B&N brief states.

The B&N brief claims that Microsoft and Nokia, which announced a Windows Phone collaboration deal in February, plan to use their combined patents in an anticompetitive way against companies using the Android OS.

"This type of horizontal agreement between holders of significant patent portfolios is per se illegal under the antitrust laws, threatens competition for mobile device operating systems and is further evidence of Microsoft's efforts to dominate and control Android and other open source operating systems."

In the case of one of the patents ('233), the B&N brief claims Microsoft withheld prior art from consideration, rendering the patent invalid. Ironically, Microsoft recently testified before the U.S. Supreme Court that the standard of proof needed to disprove a patent is too high in cases when the U.S. Patent and Trademark Office lacked prior art evidence. That case involves Microsoft's dispute with Canadian company i4i.

About the Author

Kurt Mackie is senior news producer for 1105 Media's Converge360 group.

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