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Barnes & Noble answers Microsoft's anti-Android suit

Cites 'exorbitant' fees, 'absurd' restrictions

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Bookseller and Nook e-reader vendor Barnes & Noble has lashed out at Microsoft in response to Redmond's recent lawsuit against the company and its Nook manufacturing partners Foxconn and Inventec.

Microsoft's lawsuit, filed on March 21, alleges that the Nook's Android operating system infringes upon patents held by Redmond, and that licensing fees should apply.

Naturally, Barnes & Noble sees things differently. Its response centers on accusations that Microsoft is asserting patents that cover "insubstantial and trivial features" of Android, and that Redmond is asserting those patents in an attempt to stifle competition to its Windows Phone 7 OS.

"Microsoft has asserted patents that extend only to arbitrary, outmoded, or non-essential design features, but uses these patents to demand that every manufacturer of an Android-based mobile device take a license from Microsoft and pay exorbitant licensing fees or face protracted and expensive patent infringement litigation," Barnes & Noble argues in its 50-page response, filed on Monday.

"Microsoft's conduct directly harms both competition for and consumers of eReaders, smartphones, tablet computers and other mobile electronic devices," the filing contends.

Barnes & Noble is particularly cheesed that Microsoft's lawsuit centers on an open source OS that it had no hand in producing. "Microsoft did not invent, research, develop, or make available to the public mobile devices employing the Android Operating System and other open source operating systems, but nevertheless seeks to dominate something it did not invent," the Nook-maker sniffs.

In addition, Barnes & Noble's filing suggests a combined anticompetitive effort involving Microsoft and Nokia, with which it recently entered into a Windows Phone deal. "Microsoft and Nokia discussed and apparently agreed upon a strategy for coordinated offensive use of their patents," their filing suggests.

"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."

The Reg believes that perhaps Barnes & Noble protesteth too much. Software patents may suck, but they're the law of the land. If you play the game, you follow the rules – even when the rules are moronic.

Also, if Microsoft's "exorbitant licensing fees" have a "highly detrimental anticompetitive effect" on the market, as Barnes & Noble asserts, why are HTC and Amazon – which, as reported in their filing, have licensing agreements with Microsoft – doing so well in their respective smartphone and e-reader markets?

From where we sit, more important than Barnes & Nobles' argument of anticompetitiveness is whether or not Microsoft's five asserted patents will stand up in court – and that's something for the US District Court in the Western Division of Washington to decide.

That is, if the case ever makes it that far. These types of disputes tend to be settled in corporate conference rooms, with chunks of change changing hands.

If – being a rational, free-thinking Reg reader – you'd prefer form your own opinion on Microsoft's patent assertions rather than merely weighing Microsoft's arguments against Barnes and Noble's, you can check out the five disputed patents for yourself: 5,778,372, 6,339,780, 5,889,522, 6,891,551, and 6,957,233. ®

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