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Microsoft Narrows Its Barnes & Noble Lawsuit

Microsoft on Thursday dropped one legal claim in a dispute with Barnes & Noble over alleged intellectual property infringements associated with the use of Android, a mobile operating system.

The dropped claim was based on U.S. patent 5,889,522, also known as the '522 patent. This Microsoft patent covers the use of tab controls in software. It was one of five patents that Microsoft originally claimed B&N had infringed when Microsoft initiated the lawsuit in March. Microsoft claims that B&N's use of the Android OS in B&N Nook electronic reader devices are violating its intellectual property rights.

According to a Microsoft spokesperson, Microsoft dropped the '522 patent to get things moving in the dispute, which is being overseen by Administrative Law Judge Theodore R. Essex on behalf of the U.S. International Trade Commission (ITC).

"We removed the patent from the ITC investigation to streamline and simplify the issues to be considered at the hearing as is often done in ITC proceedings. It was not a concession on the merits," a Microsoft spokesperson stated via e-mail.

B&N disputed infringing the '522 patent in its original defense brief. Company attorneys argued that it wasn't patentable.

"The asserted '522 patent relates to nothing more than putting known tab controls into an operating system for use by all applications, rather than providing these tabs on an application-by-application basis…. Simply putting existing tab controls into the toolbox already provided by the operating system was not inventive or patentable," B&N lawyers claimed (p 17).

With that patent dropped, the case has been narrowed to focus on three alleged infringements. B&N is now being sued with regard to U.S. Patent Nos. 5,778,372, 6,891,551 and 6,957,233 held by Microsoft.

According to B&N's description, the '372 patent is associated with displaying a background image after text has been displayed in a Web browser. The '551 patent involves using "handles" to changed a selection area's size when selecting text. The '233 patent has to do with storing and displaying nonmodifiable text annotations.

B&N may have experienced a legal setback in the case on Tuesday when Administrative Law Judge Essex issued a nonpublic "initial determination" that Microsoft had not been engaging in "patent misuse" in the case. However, the issue actually still remains to be determined, according to the legal news site Groklaw, because no final determination was rendered.

Hearings in the case are expected to continue on Monday.

About the Author

Kurt Mackie is senior news producer for the 1105 Enterprise Computing Group.

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