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ITC Throws Out B&N Antitrust Claims Against MS

Unknown Lamer posted more than 2 years ago | from the one-patent-to-rule-them-all dept.

Android 97

N!NJA writes with an excerpt from a post by Florian Mueller: "Barnes & Noble's primary line of defense against Microsoft's allegations of patent infringement by the bookseller's Android-based devices has collapsed in its entirety. An Administrative Law Judge at the ITC today granted a Microsoft motion to dismiss, even ahead of the evidentiary trial that will start next Monday (February 6), Barnes & Noble's 'patent misuse' defense against Microsoft. [...] Prior to the ALJ, the ITC staff — or more precisely, the Office of Unfair Import Investigations (OUII), which participates in many investigations as a third party representing the public interest — already supported Microsoft's motion all the way. The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense."

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97 comments

trolling the slashdot readers with ms stories (-1, Flamebait)

Anonymous Coward | more than 2 years ago | (#38891923)

slashdot mods sure know how to play their audience!

let the flames/trolls/mccarthyisms begin!

glad they decided to lawyer up (3, Insightful)

Anonymous Coward | more than 2 years ago | (#38891951)

Good thing Mr Gates decided to start investing in DC Lobbying infrastructure after the first round of anti-trust charges. Sure it costs millions of dollars a year, but think of all the abuses you can muster!!!

Re:glad they decided to lawyer up (-1)

Anonymous Coward | more than 2 years ago | (#38892139)

How did this AC get FP? slashdot is dieing.

Re:glad they decided to lawyer up (-1)

Anonymous Coward | more than 2 years ago | (#38892417)

Did netcraft confirm it?

Re:glad they decided to lawyer up (0)

Anonymous Coward | more than 2 years ago | (#38893327)

Imagine a Beowulf cluster of dying Slashdots...

And the Beowulf clusters of neckbeard grease that would be released....

Florian Mueller? (5, Insightful)

CrimsonAvenger (580665) | more than 2 years ago | (#38891965)

People still take this guy seriously?

Re:Florian Mueller? (1)

Joehonkie (665142) | more than 2 years ago | (#38892005)

Not usually, but this seems to be a correct statement of facts.

Re:Florian Mueller? (1)

forkfail (228161) | more than 2 years ago | (#38892659)

What do facts matter when one can go with an ad hominem approach?

Re:Florian Mueller? (4, Informative)

Anonymous Coward | more than 2 years ago | (#38893255)

Re:Florian Mueller? (0, Troll)

forkfail (228161) | more than 2 years ago | (#38893439)

Except... for his closing remarks in the article:

Certainly patent law always favors the plaintiff, which is Microsoft in this scenario. And we knew that this was an uphill fight for Barnes & Noble anyway, given the tilt against what you and I would consider fairness in both patent and antitrust law. Patent misuse defenses are hard to win. But I seriously doubt this is the end of the story. Barnes & Noble has some of the finest law firms defending it, and law firms of that calibre don't just lay down and die when there is an adverse ruling.

Which translates to:

Barnes & Noble are basically screwed because that's what the law says. But they pay a lot of money to high priced lawyers, who will keep this thing going in the legal system for at least a few more years. Yeah, the law sucks - but hey! At least the lawyers will profit. After that, Microsoft will probably win.

Re:Florian Mueller? (1)

inode_buddha (576844) | more than 2 years ago | (#38893513)

Oh look, a selective quotation! We can play this game too! Florian, is that you?

"So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations, in addition, can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn't like football. It is rarely suddenly over. "

Re:Florian Mueller? (3, Interesting)

idontgno (624372) | more than 2 years ago | (#38894535)

Litigation isn't like football. It is rarely suddenly over.

Witness the neverliving, undying horror which is SCO v. Novell [groklaw.net] . Still, there are moments that you can persuasively say "Ok, it's over", even if the vanquished is still struggling. Like:

20-Nov-2008: Final Judgment in favor of Novell, Inc., SCO Group and also against Novell, Inc., SCO Group. Case Closed. Magistrate Judge Brooke C. Wells no longer assigned to case. See Judgment for details. Signed by Judge Dale A. Kimball on 20-Nov-2008.

This particular setback* for B&N is pretty harsh, and I (though not a lawyer) don't know of any way to undo the damage.

Mueller has a tendency to go all "end-of-the-world-as-we-know-it" in his pronouncements, but the (accurate) retelling of this news is still interesting and useful (once you dig out the mere facts).

It would have been nice if Groklaw could have covered this development in and of itself, rather than as a pointless rebuttal to Mueller. Really, do we have to concede initiative to this guy? Can't we just report the facts and ignore him?

*Ok, maybe I play World of Warcraft too much, but I think I just read that in the voice of Kael'thas [wowwiki.com] . "Merely a setback", indeed.

Re:Florian Mueller? (1)

Anonymous Coward | more than 2 years ago | (#38895281)

That point is mentioned briefly Florian Mueller's article:

I haven't recently seen an ITC review of any ALJ order comparable to this one (findings of violations are a different story).

For the benefit of those Slashdotters who simply crave analogies, it's like you're asked if some part of code has a bug in it. So you run tests against it and make an initial determination that it doesn't have bugs. Then later someone provides their own tests and asks for a review and your initial determination is overturned.
 
On the other hand, if you can see that the particular piece of code is never actually executed then an initial determination that it isn't the cause of any bugs is far less likely to be overturned.

Re:Florian Mueller? (2)

Anonymous Coward | more than 2 years ago | (#38893575)

Actually that is probably one of the most one sided summaries of the closing remark i have ever seen. Your blog post wasn't enough Florian?

Re:Florian Mueller? (-1)

Anonymous Coward | more than 2 years ago | (#38894243)

Hmm, nope. PJ's article raises several questions that boil down to just one:

I mean, seriously, if all the evidence isn't in and so hasn't been considered, what can any initial determination mean?

And this is answered in the original article:

The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense.

Kind of ironic that the "FUD" article offers information and analysis while the "anti"-FUD article raises questions without trying to answer them; questions that were answered in the original "FUD" article!

Re:Florian Mueller? (0)

Anonymous Coward | more than 2 years ago | (#38901147)

Since it's a sealed document, i'm not sure how what claim is "information and analysis" is nothing but FUD.

Re:Florian Mueller? (1)

CrimsonAvenger (580665) | more than 2 years ago | (#38893843)

Not usually, but this seems to be a correct statement of facts.

Well, other than the part where you can't actually read the order yet...

Note also that a dismissal of an "Affirmative Defense" isn't actually the end of the world - it just means that you'll have to actually go to Trial for real, rather than saying "Nyah, nyah, the law says that since we have this affirmative defense, you lose!"....

Re:Florian Mueller? (-1, Flamebait)

Missing.Matter (1845576) | more than 2 years ago | (#38892049)

He certainly has better qualifications than the average Slashdot armchair lawyer to be commenting on this topic.

Re:Florian Mueller? (0)

Anonymous Coward | more than 2 years ago | (#38892065)

What qualifications would they be? Being paid by Microsoft is not in itself a qualification.

Re:Florian Mueller? (4, Informative)

stevew (4845) | more than 2 years ago | (#38892469)

Mueller is generally a very one-sided reporter. He is VERY one-sided when it comes to coverage of Android, i.e. hates it, and ALWAYs in favor of anything Apple.

IANAL - and have no real idea what the real net effect is on the lawsuit. I'll wait till there is some coverage on Groklaw to look for a real explanation of what the implications are. Granted - Groklaw is heavily pro anything FOSS, consequently it serves as a decent counter-point to Mueller.

Re:Florian Mueller? (-1)

Anonymous Coward | more than 2 years ago | (#38893511)

Mueller is generally a very one-sided reporter. He is VERY one-sided when it comes to coverage of Android, i.e. hates it, and ALWAYs in favor of anything Apple

Have you considered maybe that's the appearance because there's lots and lots to dislike in Android and Google and comparatively very little to like.

Re:Florian Mueller? (0)

stevew (4845) | more than 2 years ago | (#38894057)

Well -gee, didn't know Florian Mueller posted here on slashdot!

Re:Florian Mueller? (0)

Anonymous Coward | more than 2 years ago | (#38897151)

Disregard the parent comment. I was just lashing out because I accidentally wiped the data partition instead of the cache when I was installing Cyanogenmod.

Re:Florian Mueller? (-1)

Anonymous Coward | more than 2 years ago | (#38897791)

"Linux supporters say Linux is better"

"Windows supporters say Windows is better"

Yawn. Groklaw is not pro anything FOSS it is a FUD mouthpiece funded by IBM. IBM ofcource deny they have any editorial control over Groklaw but gee will you look at that all the news are slanted against SCO, MS and any other competitor to IBM. Nobody outside of religious FOSS supporters take anything on that website seriously. Its just an orgy inside an eternal echo chamber in there.

Re:Florian Mueller? (1)

Xest (935314) | more than 2 years ago | (#38900803)

To be fair his bias isn't towards Apple, it's towards Microsoft, but Android is indeed his primary target as Microsoft apparently sees this as a bigger threat than iOS for whatever reason.

If it's an Apple vs. Google story you can guarantee he'll side with Apple, but you'll note if it's something that involves Microsoft, Apple and Google, or just Microsoft and Apple then the bias will be towards Microsoft rather than Apple.

I wouldn't be surprised if Mueller is linked to the multi-account pro-MS shill that posts here. I don't know why Microsoft bothers with these people though, I'm probably one of the more pro-MS people on Slashdot - I think the 360 is the best console around right now, and I think Visual Studio is far and away the best IDE around, but frankly all this blatant tosh from their paid shills is polarising people more against them, it isn't changing opinion as they seem to hope, it's actually making it impossible for me to defend them as a generally improving company when they actually do good stuff, as the good is being tarred by this shit, and if anything it's actually making even me begin to really dislike them.

Certainly it's pissed me off enough to be a major factor in cancelling Windows Phone ports of some of our projects here, and focus just on Android and iOS.

Re:Florian Mueller? (5, Insightful)

0xdeadbeef (28836) | more than 2 years ago | (#38892627)

He certainly has better qualifications than the average Slashdot armchair lawyer to be commenting on this topic.

So does Lamar Smith and Jack Thompson.

Re:Florian Mueller? (1)

Asic Eng (193332) | more than 2 years ago | (#38901129)

Actually Florian has no legal training, he just finished high school, that's all. So his formal qualifications are probably well below Slashdot average.

Re:Florian Mueller? (4, Informative)

Penguinisto (415985) | more than 2 years ago | (#38892441)

They do, but at least they've (finally!) began putting in the disclosure that Mueller is a paid Microsoft shill.

Re:Florian Mueller? (1)

HBI (604924) | more than 2 years ago | (#38893611)

I'd happily read his stuff if the citation also included "lying sack of shit". Which is most appropriate.

Re:Florian Mueller? (1)

HiThere (15173) | more than 2 years ago | (#38897163)

See today's Groklaw. The /. articel is inflamatory, haven't checked the original.

Key passage: (5, Insightful)

forkfail (228161) | more than 2 years ago | (#38892113)

The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense. For example, Barnes & Noble claimed that Microsoft asked for excessively high patent license fees, but the OUII quoted passages from U.S. law (statutory as well as case law) that clearly said that patent law doesn't require a patent holder to grant a license on any terms.

So, basically, it was game over before it got started.

It's not about creation anymore.

It's all about owning segments of possible creation.

And those have been mostly divvied up, given the ridiculously broad areas of thought and ideas that we allow to be patented.

Re:Key passage: (0)

noh8rz2 (2538714) | more than 2 years ago | (#38892259)

We've been talking about the Microsoft tax for years, but recently they've taken a literal interpretation. A couple bucks per device here and there, on all products but apple.

To be fair though, all of this is the result of google taking shortcuts in developing android instead of building their own product. No wonder they were able to create an os so quickly, then turn around and sell it for free.

Re:Key passage: (4, Insightful)

0123456 (636235) | more than 2 years ago | (#38892397)

"To be fair though, all of this is the result of google taking shortcuts in developing android instead of building their own product. "

Correct me if I'm wrong, but isn't the current situation:

1. Microsoft refused to tell anyone what patents they claimed Android was infringing?
2. When B&N finally got a list of the patents, they appeared to be trivial with plenty of prior art?

Re:Key passage: (1)

mariasama16 (1895136) | more than 2 years ago | (#38899831)

The only part you're missing is that B&N was claiming that Microsoft was misusing their (trivial/invalid) patents to maintain a monopoly on the desktop. Without reading what Mueller wrote (and mostly just reading Groklaw's take, including comments there), this ruling appears to be that the ITC won't continue to consider the patent misuse argument... for now. However, it is an initial ruling and not all of the information has been provided (and it looks like the majority of B&N's patent misuse defense rests on information that it is trying to get Nokia and MOSAID to provide via currently pending motions which wouldn't be available for any rulings right now).

Re:Key passage: (4, Insightful)

airfoobar (1853132) | more than 2 years ago | (#38892407)

To be fair though, all of this is the result of google taking shortcuts in developing android instead of building their own product. No wonder they were able to create an os so quickly, then turn around and sell it for free.

You've got to be kidding. That sort of thinking not only undermines Google's effort of bringing a good product to market and making it so successful, it also undermines the very foundations of the OSS ideology.

The problem here isn't on Google's part, it's on the parts of the patent system (for allowing patents of highly questionable quality to be used in this way) and Microsoft (for being anti-competitive asshats as usual).

Re:Key passage: (0)

Stan92057 (737634) | more than 2 years ago | (#38892787)

(for allowing patents of highly questionable quality to be used in this way) Says who? You?? What are your qualifications to make that kinda statement?

Re:Key passage: (2)

Grave (8234) | more than 2 years ago | (#38892887)

The qualification here is having a bit of common sense. The system is broken. Let's not dilute that reality by keeping our thinking so inside the box that we can't see the fundamental failure of the patent system to promote innovation in the modern era.

Re:Key passage: (1)

Stan92057 (737634) | more than 2 years ago | (#38897055)

I am for patents i am against patent trolls. MS is far from being a patent troll.

Re:Key passage: (1)

airfoobar (1853132) | more than 2 years ago | (#38899319)

"Far" is a matter of perspective.

Re:Key passage: (1)

zeroshade (1801584) | more than 2 years ago | (#38902189)

When the patents they are using to hold something for ransom are trivial patents that any programmer would come up with the same solution if given the same problem, with lots of prior art, then yes. They are being a patent troll in this instance.

Re:Key passage: (1)

Stan92057 (737634) | more than 2 years ago | (#38905285)

They applied for the patent,or bought the company that originally owned the patent' it was researched by the patent office and patent was granted. You calling the patent trivial is just being a troll. They have followed what the legal system has provided. They broke no laws. Isnt the MS hating getting a little old?

Re:Key passage: (1)

zeroshade (1801584) | more than 2 years ago | (#38905941)

No one said they broke any laws. And it's not just MS hate, I hate on pretty much every company that uses their patents offensively.

The patent isn't trivial because I call it that, the patent is trivial because an ordinary software engineer would find the solution to be obvious. These patents, along with many others, should never have been granted. It's more of an example why software patents are just a horrible idea. The implementation is not patented, the idea is, which is contrary to the purpose of patents.

In addition, just because they have a patent does not mean they must assert the patent just to make a buck (use it offensively). Microsoft makes more money from Android phones than from their own Windows phones, by asserting trivial patents that should not have been granted. Regardless the legality, it's what many would call being a troll.

Re:Key passage: (1)

Stan92057 (737634) | more than 2 years ago | (#38907315)

I'm not going to change your mind no matter what. There are millions of products that we all could say OMFG why didn't i think of that. Well MS did that and patented it legally . They are within there legal rights to sue anyone that uses their patented teck wither you or i like it or not

Re:Key passage: (1)

zeroshade (1801584) | more than 2 years ago | (#38942279)

You're arguing a complete straw man. I never said they weren't within their rights. I never said that what they are doing is illegal, nor even hinted at it.

I'm also not talking about things that are "OMFG why didn't I think of that." I'm talking about things that when that particular problem was put to me I went "So, why don't you just do this?" after thinking about it for roughly 5 or 10 minutes. Or problems that result in my reaction of "you mean they don't just do X? Why the hell not?" And then found out that those solutions are patented by MS, which is why they don't do it.

When there's prior art along with thousands of competent software engineers who all look at something like showing you the text in the browser while still loading the background images to make it seem faster (rather than just waiting until everything is downloaded) and go "well, duh!?" at the solution, then the patent should never have been granted.

I never said that they can't do what they are doing, or that it is illegal in anyway, I just said that I don't like it, and it's wrong for them to do it, for these patents to have been granted, etc. If you're going to argue with me, at least argue the point I am arguing, rather than a straw man.

Re:Key passage: (1)

airfoobar (1853132) | more than 2 years ago | (#38894063)

I've seen the patents and they're a joke. They've been discussed here before [slashdot.org] . What are my qualifications? Like many others here on /. I'm "in the trenches" so as far as I'm concerned I'm more qualified to have an opinion than the lawyers and judges that YOU'd consider "qualified" to make that kinda statement.

Re:Key passage: (0)

noh8rz2 (2538714) | more than 2 years ago | (#38895669)

undermines the very foundations of the OSS ideology.

ah, but there's the rub, no? Google took its open source ideology and used it to justify taking material from microsoft, apple, and oracle, none of which see their own material as open source and all of which paid a lot of money to develop the material. In general, the open source ideology is great when taking from others, but isn't so popular when others are taking from you.

In that vein, could I please have the google search algorithm? I'd like to implement my own, and make money using the work that google has done. kthxbai.

Re:Key passage: (2)

zeroshade (1801584) | more than 2 years ago | (#38902233)

used it to justify taking material from microsoft, apple, and oracle

Since we're just discussing microsoft here, let's take a look at the patents that Microsoft is using:

  • Placing a loading status icon in the content area of a browser
  • Browser recognizes background images and loads the text first so it loads faster
  • Putting controls into the OS for all applications to use rather than tabbed controls on an application by application basis
  • Using a handle to change the size of text for a selection region
  • Storing and displaying non-modifiable annotations to text
    • Please tell me how those aren't common sense things that are trivial to be patented. You can't because any engineer worth his salt will see the problem that needs to be solved and find the obvious solution, which is each of these. Not to mention the prior art.

Microsoft isn't a corporation.... (5, Insightful)

forkfail (228161) | more than 2 years ago | (#38892583)

... and it's not a tax.

Rather, Microsoft is a medieval style guild, and they collect dues from any who would practice their trade. If you don't pay, they come and burn down our house.

And it goes way, way deeper than any "shortcuts". To put it another way, if we were talking about mechanical and structural engineering, not only would MS hold the rights to be the sole bridge builders in the land, but the very concept of a device or structure to facilitate the crossing of a body of water would be theirs. They'd own the rights to cables, supports, bolts; not only to steel but to alloys in general.

With our technology, there is nothing that doesn't stand on the shoulders of those who have gone before at this point. We should still be in a rapid development cycle, spinning upward. Instead, we squabble over who gets to build anything at all.

And eventually, we're going to absolutely destroy American technological innovation. First, by making it impossible for most everyone but the established players to build anything at all. And by doing so, we will lay the groundwork for the first other nation to surpass us to absolutely ensure that we are subject to the very idiotic laws that we are using to choke our own innovation.

Re:Key passage: (1)

rtb61 (674572) | more than 2 years ago | (#38896581)

More specifically junk patents help the rich screw the poor. The 99% pay the cost of those patents while the 1% rake in the profits and absolutely nothing to do with innovation just straight up greed. The current administration is quite comfortable with greed. That any government can look at these patents in question and not see the scammy pieces of shit they are is as corrupt as the regulations they created to give the force.

FuckO! (-1)

Anonymous Coward | more than 2 years ago | (#38892275)

by 3licking here

The patents in question (according to Microsoft) (5, Insightful)

chrb (1083577) | more than 2 years ago | (#38892347)

MS says: [technet.com]

The Microsoft-created features protected by the patents infringed by the Nook and Nook Color tablet are core to the user experience. For example, the patents we asserted today protect innovations that:
* Give people easy ways to navigate through information provided by their device apps via a separate control window with tabs;
* Enable display of a webpage’s content before the background image is received, allowing users to interact with the page faster;
* Allow apps to superimpose download status on top of the downloading content;
* Permit users to easily select text in a document and adjust that selection; and
* Provide users the ability to annotate text without changing the underlying document.

Microsoft obviously thinks this is pretty advanced stuff. Adjust a text selection? Annotate a document? Tabbed controls? Woah. No wonder they want $30 per device (more than the cost of licensing WP7!).

Re:The patents in question (according to Microsoft (1)

Anonymous Coward | more than 2 years ago | (#38892577)

Android also faces serious patent issues from Apple. After Apple demolishes Samsung, Motorola and HTC they may try to squash the fringe players like B&N.
Unlike Apple, MS has at least offered reasonable royalty terms to Android manufacturers. So spread your hatred around a little.

Re:The patents in question (according to Microsoft (0)

Anonymous Coward | more than 2 years ago | (#38894211)

They may not need to, given that both Amazon and Apple provide tools for publishing books on their platform, and Barnes & Noble don't. B&N are circling the drain right now, and this lawsuit is a last-ditch measure to try and stay solvent. (They're trying to undercut the competition by not licensing the patents.)

Right now, B&N have a crappy ereader (the Kindle is vastly superior, their tablet version tanked), a crappy online bookstore (Amazon has millions of titles, B&N has an order of magnitude less, Apple won't say but allows self-publishing which B&N doesn't), and a large number of physical stores (that are slowly becoming more "bad Apple store clones" than bookstores in that they contain a large "Nook version of an Apple Store" near the entrance, rather than, well, books).

But given that Barnes & Noble's two largest competitors are, in fact, Amazon and Apple, it would not surprise me at all to see Apple immediately bring legal action should Microsoft fail to kill Barnes & Noble on their own.

Re:The patents in question (according to Microsoft (0)

Anonymous Coward | more than 2 years ago | (#38894355)

You retard. The Kindle isn't "vastly superior". It's actually fairly useless because it can't even read epub. The hardware and screen are pretty much the same.

Re:The patents in question (according to Microsoft (0)

Anonymous Coward | more than 2 years ago | (#38894587)

Go read ereader reviews. They always say: Kindle is the best, then there's iBooks if you're swimming in money, then there's the Nook is you're too stupid to realize it's more expensive than the Kindle.

It's actually fairly useless because it can't even read epub.

And the Nook can? It only reads books from the Barnes & Noble store, they removed the ability to "side load" stuff a while ago. Besides, the defacto standard is MOBI, to the extent that Apple had to create a tool to make books in whatever format they use. No one knows what an "epub" is, but people know what an iBook or a MOBI is.

Re:The patents in question (according to Microsoft (1)

Anonymous Coward | more than 2 years ago | (#38895217)

Go read ereader reviews. They always say: Kindle is the best

Reviews usually say they're about even.

then there's the Nook is you're too stupid to realize it's more expensive than the Kindle.

The Nook touch is $99 as is the Kindle. The Kindle is only $99 now because it's the version that shows you ads. Without ads it was still $139. They don't even seem to be selling it without ads anymore.

And the Nook can? It only reads books from the Barnes & Noble store, they removed the ability to "side load" stuff a while ago.

It comes with a usb cable. Plug it in and drag the file to it.

Besides, the defacto standard is MOBI, to the extent that Apple had to create a tool to make books in whatever format they use.

From wikipedia:

The EPUB format is rapidly gaining popularity and as of 2011 is the most widely supported vendor-independent XML-based e-book format.

Isn't the Kindle the only ereader that doesn't support it? Apple choosing a proprietary format isn't surprising. Not sure why you think that makes the format superior. Apple makes a lot of choices that are harmful to consumers.

No one knows what an "epub" is, but people know what an iBook or a MOBI is.

Who cares what people know or don't know. People are stupid. What you should care about is that Amazon refuses to support open formats.

Re:The patents in question (according to Microsoft (1)

Anonymous Coward | more than 2 years ago | (#38896715)

You're full of it. I have a Nook Color and an iPad2, and the Nook is way better for *reading*. The iPad is OK, but after a while it is much more pleasant to hold a device that is the size of an ordinary book, rather than one with the dimensions of a thin textbook. Also, the Nook has a higher pixel density, so the the text looks noticeably more clear.

Also, it is very easy to put epub files from e.g. Project Gutenberg onto the Nook. You just plug the usb cord into any desktop or laptop computer, and it appears as a filesystem. Most of what I read on my Nook Color is from PG. However, you can't just go to the PG website with the Nook's browser, download the epub files, and have them appear alongside your other books from B&N, because the downloads don't wind up in the right place and the Nook itself doesn't have any sort of file manager.

N.B. - it is possible that the new Nook Tablet won't easily read third-party epubs. They did change some things for the worse, including disabling booting from the SD card which made it so easy and risk-free to try a standard Android system on the Color.

Re:The patents in question (according to Microsoft (1)

Omestes (471991) | more than 2 years ago | (#38897995)

iBooks

Repeat after me; "The iPad is not an ereader...". It is a tablet that can handle books (just like all the various Android tablets, or old Windows tablets), not an ereader. Ereaders aim at a completely different segment of the market. I have both, a tablet (with Kindle and Nook software), and a dedicated ereader (a Nook). I use one for reading books, and the other for wasting time on Youtube...

Re:The patents in question (according to Microsoft (1)

Djehuty3 (1371395) | more than 2 years ago | (#38898479)

You're full of shit.

Nooks mount as a mass storage device; You drag your files over, disconnect and go into the library - it'll check for new content and that's it, you're done.

Re:The patents in question (according to Microsoft (0)

Anonymous Coward | more than 2 years ago | (#38894663)

Agreed, The Nook ereader is very good and is more open in formats. The comment about B&N a order of magnitude less is also false, B&N claim over 1 million nook books for sale as well on their website.

Re:The patents in question (according to Microsoft (1)

Curunir_wolf (588405) | more than 2 years ago | (#38895031)

Jeff? Is that you?

This is slick PR, but completely inaccurate. B&N's tablet, their service, their brick-and-morter presence are all major advantages of "I own the one-click ordering" Amazon. Apple is a technology company, so they are not B&N competitors. The Nook tablet is awesome, BTW, but they should really back off on the lock-down if they want to sell more.

B&N also is NOT a publishing company - they are a book retailer. There is no need or reason for them to "provide tools for publishing books" - other people do that, and the B&N Nook supports those formats. And some of those tools allow you to actually control your work, unlike Apple's tool that takes ownership of your entire publishing and marketing chain just for using their tool.

Re:The patents in question (according to Microsoft (1)

Omestes (471991) | more than 2 years ago | (#38897967)

Right now, B&N have a crappy ereader (the Kindle is vastly superior,

How so?

I tried both before getting one ( a Nook), and they were around 100% equivalent. There were some things the Kindle could do better (better battery, but the Nook's was good enough not to matter much to me, slightly better contrast, free intrusive ads), and some things the Nook could do better. It boiled down to a choice based on preference, not hardware or software. I picked the Nook because I like open standards (epub, and Overdrive), and I'd rather help B&N stay in business than help Amazon try to grab more sectors of the economy by their balls.

I live in an area with over 4 million people, and there are only 3 new bookstores remaining, B&N (who decided that bookstores should focus on toys instead of books lately), and two small independent ones. This is largely because of Amazon. I'd rather shop from any alternative than them, of late.

Re:The patents in question (according to Microsoft (2)

phantomfive (622387) | more than 2 years ago | (#38892649)

Microsoft obviously thinks this is pretty advanced stuff. Adjust a text selection? Annotate a document? Tabbed controls? Woah. No wonder they want $30 per device (more than the cost of licensing WP7!).

I really wish 'obvious' were a common defense in patent fights, because so many patents ARE obvious.

But as far as I know, no patent case has ever been one because the patent was obvious. One-click-purchasing is still patented by Amazon, even after a LOT of fighting.

Re:The patents in question (according to Microsoft (1)

Anonymous Coward | more than 2 years ago | (#38894329)

I really wish 'obvious' were a common defense in patent fights, because so many patents ARE obvious.

Obviousness is not a court defense. The patent office itself is supposed to reject obvious patents in the first place instead of issuing them (they're dicks, or stupid).

Once a patent is granted, it's too late. The best you can do is try to force the patent office to reassess the patent (Great, have the cockbites who granted it double check their own work) and hope that they reject it correctly the second time around.

Re:The patents in question (according to Microsoft (1)

mutley89 (2525472) | more than 2 years ago | (#38898649)

IANAL, but I'm pretty sure that arguing that a patent is invalid in court is a defence against patent infringement. See here [groklaw.net] for an example where Red Hat showed prior art during trial and got a patent troll's patents invalidated. Similarly in this case, even if B&N fail to show patent misuse, they have a ton of prior art, and arguments that the patents are trivial and don't actually properly disclose the "invention". See here [groklaw.net] .

Re:The patents in question (according to Microsoft (1)

MrHanky (141717) | more than 2 years ago | (#38893385)

How do you know the patent license costs more than a WP7 license? It seems unlikely, considering that WP7 phones don't deliver nearly as good hardware for the money, compared to Androids.

Re:The patents in question (according to Microsoft (2)

chrb (1083577) | more than 2 years ago | (#38894657)

It was in the Barnes and Noble court filing, they said MS wanted more money per device for "Linux patent protection" than they charge to license WP7. I think the exact amounts got redacted in the court filings though.

Re:The patents in question (according to Microsoft (2)

Curunir_wolf (588405) | more than 2 years ago | (#38895063)

They do make more money licensing Android patents than they do from WP7 licenses. It's right there in their corporate reports.

Re:The patents in question (according to Microsoft (1)

MrHanky (141717) | more than 2 years ago | (#38897529)

That doesn't answer the question. Android has more than 20x WP7's market share.

Re:The patents in question (according to Microsoft (1)

Curunir_wolf (588405) | more than 2 years ago | (#38897893)

Well I can't speak for the OP - and I haven't heard the $30 figure before. If it's true, it's about double the per-device cost of WP7, which is about $15 (for HTC anyway). Others pay more - estimates are between $20 and $30, and ZTE (in the UK) has revealed their WP7 license is between $23 and $30.

What should strike any justice-minded person as repugnant is the entire idea that Microsoft, through legal coercion, market dominance and government sanction, can make so much money on something that they did no real productive work to earn, but obtain purely through rent-seeking. AND they actually make MORE money from that than they do their own crappy software that nobody wants.

Re:The patents in question (according to Microsoft (1)

dgatwood (11270) | more than 2 years ago | (#38894029)

In order:

* Give people easy ways to navigate through information provided by their device apps via a separate control window with tabs;

Nook doesn't have any real notion of windows. It's a tablet-based OS.

* Enable display of a webpageâ(TM)s content before the background image is received, allowing users to interact with the page faster;

Nook doesn't support background images except in the browser. And in that case, I'm pretty sure Netscape has prior art. Unfortunately, none of the sites talking about these patents seem to post the full patent numbers, so all we can really do is speculate.

* Allow apps to superimpose download status on top of the downloading content;

So they have a patent on showing the status bar in a different place on the screen? Because there is no functional difference in the way such a bar is drawn, any such patent, if it is not a design patent, should be ruled invalid. If it is a design patent... well, then they'll just have to change their design so that it doesn't do that.

* Permit users to easily select text in a document and adjust that selection; and

No idea if there is prior art without seeing the patent number.

* Provide users the ability to annotate text without changing the underlying document.

I have a hard time believing Adobe doesn't have patents that are prior art....

Re:The patents in question (according to Microsoft (0)

Anonymous Coward | more than 2 years ago | (#38894729)

Well, it beats rounded corners.

Whatever happened to "one practiced in the arts.." (1)

neurocutie (677249) | more than 2 years ago | (#38895091)

USPTO *used* to set a pretty high bar for obvious improvments, modifications and "innovations", using the notion that "one practiced in the arts..." (i.e. experts in the field), could, would and have easily arrived at the same solutions, tricks and modifications. Some of these "protected innovations" are obviously ridiculous and trivial to "one practiced in the arts...", like:
* Provide users the ability to annotate text without changing the underlying document. ... please... what does yellow highlighter do, nevermind just scribbling on a printout of a doc while retaining the original copy... sheesh... Does Adobe pay MS for their annotation features in Acrobat?
* Permit users to easily select text in a document and adjust that selection. ... again, easy selection??? been doing it for years with mice, with EMACs marking functions, etc.
* Enable display of a webpage’s content before the background image is received, allowing users to interact with the page faster. ... quite sure Netscape did this at least 15 years ago or earlier... and simply starting to display before download is finished? (one practiced in the arts... obvious and trivial).

Re:Whatever happened to "one practiced in the arts (1)

unrtst (777550) | more than 2 years ago | (#38897169)

Surprisingly, I actually found the annotations one to be kinda novel.

Your example of using a yellow highlighter DOES change the document, as does scribbling on it. Making a copy and marking that up is still marking up right in the full document. I'm not familiar enough with Acrobat's annotations to know if it makes them in a separate file... if so, that could well be prior art.

I'm not familiar with the exact patent, nor with B&N's annotations, but I am intimately familiar with Kindle annotations. They're stored in a separate file with pointers to the positions in the file they are annotating. When I first saw that, I really liked the idea. In hindsight, it seems kinda obvious, but the straight forward approach would have been appending the annotations to the end of the file or embedding them in the file (ex. as html div tagged data with a custom css class that displays that text differently).

Storing annotations outside the doc is actually a bit more complex in rendering and such, but it's awesome to be able to delete a book/file and keep the annotations... and they come right back if you download the book again (cause they were never gone). It's also great in that the book file keeps the same content, so deduping will still work on it if stored on a server, for instance. Sharing annotations is easier this way as well, as you don't have to extract them from the file or send the whole book.

That said, software patents should never be allowed. But, in a world that does allow them, this one seems to have some teeth to it. On face value, the others are all ridiculous.

Re:Whatever happened to "one practiced in the arts (1)

Undead Waffle (1447615) | more than 2 years ago | (#38900361)

This is really just a digital version of writing on the document. Storing it in a separate file is an obvious way of implementing this feature on a digital device. Modifying the original file is another way of implementing it but these are the types of design decisions software developers deal with on a daily basis and giving patents that span multiple decades for them is absurd.

Re:Whatever happened to "one practiced in the arts (1)

neurocutie (677249) | more than 2 years ago | (#38912003)

"Your example of using a yellow highlighter DOES change the document, as does scribbling on it. Making a copy and marking that up is still marking up right in the full document. I'm not familiar enough with Acrobat's annotations to know if it makes them in a separate file... if so, that could well be prior art."

OK, except that I wasn't trying to make arguments about prior art. Instead I was talking about "one practiced in the arts", i.e. "innovations" that are so obvious that they should be ruled as NON-innovations that are obvious to anyone "practiced in the arts". The USPTO is supposed to throw out any patents that describe minor or obvious adaptations and improvements that any expert in the field (or anyone at all) would easily come up with.

Another Reason to Use GPL Software vs Android (1, Interesting)

LuxuryYacht (229372) | more than 2 years ago | (#38892375)

Didn't people see this coming? Google chose Apache 2.0 for their reasons and goals for Android

http://source.android.com/source/licenses.html [android.com]

"We've simply decided that ASL2.0 is the right license for our goals."

The tablet bubble is already bursting but maybe bodhilinux or similar will be used for some future consumer applicances to avoid these probelms?
http://bodhilinux.com/ [bodhilinux.com]

Re:Another Reason to Use GPL Software vs Android (3, Informative)

speedplane (552872) | more than 2 years ago | (#38893023)

GPL does nothing to stop third-parties from asserting patents. The outcome would not have changed if Google GPLed android.

Re:Another Reason to Use GPL Software vs Android (1)

inode_buddha (576844) | more than 2 years ago | (#38896843)

Neither does any other license stop third parties. Like they say, anyone can bring suit at anytime for any reason. Whether it has merit is a different story tho. The GPL absolutely *does* forbid distribution if any part of the GPL's work is encumbered however.

Death Warrent for US innovation. (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38892601)

Fact is that software systems other than Microsoft's run most devices available. BusyBox rules the roost, Android has a huge portable devices market and the rest of the know universe belongs to Apple with a smattering of odd ball stuff like Symbian. The United States patent office has been subverted by companies like Microsoft and the rest of the world is now becoming the source for real product innovation.
Plain and simple the whole concept of an economy based more on IP than real products has backfired. The statements coming out of Washington about how IP has to be protected at all cost and how American "innovations" are more valuable than real products has led to this sad state of affairs.
The rest of the world could care less, America is being miss lead by corporate junkies like Steve Ballmer and the economy is going to go down the tank because of corporations like Microsoft and the failure and shameful decline of real industrial innovation, education and leadership within the United States.

Re:Death Warrent for US innovation. (-1)

Anonymous Coward | more than 2 years ago | (#38894837)

Funny you should say that, since in this case, the Nook is a carbon-copy of the Kindle (for the regular versions) and Kindle Fire (for the "tablet" versions). It's not like Barnes & Noble were doing any innovating here in any case, they're just copying what other people are doing.

Now, granted, they're being sued by a third party who didn't innovate any of the stuff that Barnes & Noble copied, which is kind of ironic. But it's not like the Nook is some innovative new device. It's a (poor) rip-off of the Kindle in a desperate attempt by an old brick-and-mortar bookstore to pretend that they're still relevant in the 21st century.

Re:Death Warrent for US innovation. (1)

Anonymous Coward | more than 2 years ago | (#38895421)

the kindle fire came out a year after the nook color.
and amazon did not have a touch screen equipped kindle before the original nook.

Nice try troll.

Re:Death Warrent for US innovation. (1)

Anonymous Coward | more than 2 years ago | (#38895849)

Funny you should say that, since in this case, the Nook is a carbon-copy of the Kindle (for the regular versions) and Kindle Fire (for the "tablet" versions). It's not like Barnes & Noble were doing any innovating here in any case, they're just copying what other people are doing.

Now, granted, they're being sued by a third party who didn't innovate any of the stuff that Barnes & Noble copied, which is kind of ironic. But it's not like the Nook is some innovative new device. It's a (poor) rip-off of the Kindle in a desperate attempt by an old brick-and-mortar bookstore to pretend that they're still relevant in the 21st century.

(as AC cause you are)
um.... didn't the Nook come out BEFORE the kindle fire? ... who is copying whom?

Abuse is irrelevant (2)

PortHaven (242123) | more than 2 years ago | (#38892889)

Resistance is irrelevant. You will be copyrighted. Public domain is irrelevant. COPYRIGHT COPYRIGHT COPYRIGHT

What happens when you cross the Borg with the Dalaks. You get "patent trolls".

Qualifications (1)

inode_buddha (576844) | more than 2 years ago | (#38893077)

I think I'll wait and see what Groklaw says about this - since it is now run by an actual IP lawyer (Mark Webbink of RedHat), I think they are *very* much qualified, far moreso than Mr. Mueller. Not that PJ was un-qualified at all - her research as a paralegal is world-class. And since she too works in the legal industry I'm sure she is also far more qualified than Mr. Mueller.

Re:Qualifications (0)

Anonymous Coward | more than 2 years ago | (#38893135)

Please groklaw tell me what I should think about this!

FTFY

Re:Qualifications (1)

inode_buddha (576844) | more than 2 years ago | (#38893715)

*shrug* At least I'm man enough to admit when I'm not a subject matter expert. Unlike certain shills.

"I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements. "

News at 11: The Law Is Stupid (1)

daboochmeister (914039) | more than 2 years ago | (#38893179)

I'm sure we're all so surprised.

Won't slow B&N down (1)

inode_buddha (576844) | more than 2 years ago | (#38893209)

This won't hurt B&N that much. Mainly they already have letters rogatory and subpoenas pending against MOSAID and Steven Elop. Looks like they're gonna have to speak up and tell what the deal is after all.

Next Steps (1)

Nerdfest (867930) | more than 2 years ago | (#38893319)

So the antitrust claims failed ... how about charging them with extortion?

Re:Next Steps (1)

HarrySquatter (1698416) | more than 2 years ago | (#38893443)

So they can waste more money on a claim that will get thrown out? Enforcing your patents is not extortion. Well unless your Samsung and then it's okay to use FRAND patents as a bludgeon.

Lawyers vs Shills (4, Informative)

inode_buddha (576844) | more than 2 years ago | (#38893381)

And here's [groklaw.net] what an actual freakin IP attorney thinks. I remember when Mueller got backed into a corner on that site a while back - he was *way* out of his depth even with amateurs.

Follow the money (1)

ThatsNotPudding (1045640) | more than 2 years ago | (#38893911)

Seriously; we need a way to keep track of the personal finances of everyone ruling against FOSS with no real, valid reason given. From junior patent examiners to international jurists; are they and their families living beyond their means with no honest, visible means of support.

This needs to be the real Obviousness Test.

As usual, wait 'til Groklaw weighs in (2)

sgtrock (191182) | more than 2 years ago | (#38893921)

before making any assumptions:

I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn't like football. It is rarely suddenly over.

Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?

Lots more here [groklaw.net] .

Groklaw.... (1)

TemporalBeing (803363) | more than 2 years ago | (#38894795)

See PJ's comment [groklaw.net] on Groklaw. Covers it pretty well.

Please - Use a reliable source (0)

Anonymous Coward | more than 2 years ago | (#38895841)

Please - Why is this even on slashdot. At least wait until its reported on by a RELIABLE and intelligent source before you post it. Last thing I want to read over breakfast is crap by Mueller. Fortunately I had read other sites first so I had the facts already but does slashdot want to lose credibility ???? The ruling might be news but this linking ISNT !

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