updated 01:30 pm EST, Fri November 18, 2011
Barnes and Noble relies on prior art to deflate MS
Barnes & Noble in its defense against Microsoft has countered with a 43-page list of prior art that it believes invalidate Microsoft's supposedly Android-related patents. The examples often go back over 16 years and include software as far back as NCSA's Mosaic browser, the precursor to Netscape and Microsoft's own Internet Explorer. The strategy would only need a handful of prior art claims to negate Microsoft's case.
In checking for patent abuse, Barnes & Noble has also put out a letter rogatory, or a request to a foreign court, asking it to order details of Mosaid's deal with Nokia and, simultaneously, Microsoft. The call to the Canadian firm want to know both the terms of the Nokia and Microsoft deals as well as compel testimony from Mosaid CEO John Lindgren. Barnes & Noble believed that the Nokia deal might have been a deliberate maneuver on Microsoft's behalf, since Mosaid as a company without a real product didn't have to worry about facing a ban from a countersuit.
Microsoft isn't yet known to have responded to the challenges. In the past, it has always acted as though its patents are unquestionable and that the only solution to resolving Android patent "issues" was to get a license. Barnes & Noble, and supporting critics, have noted that Microsoft has used tactics that hide the details of any patent violation under a non-disclosure agreement and make it difficult to challenge legitimacy. As one of the larger technology companies, Microsoft has further been accused of using its financial weight to intimidate companies into paying royalties, knowing they can't afford to mount resistance.
Barnes & Noble is one of the few companies to resist outside of Motorola. It's also unique in that Microsoft has no alternative OS of its own to offer for the Nook Tablet. When targeting smartphone makers, Microsoft usually offers a "discount" on royalties if the company agrees to make Windows Phones. [via Groklaw]