Is This the Start of Microsoft Anti-Trust 2.0?

Although it probably seems like impossibly-distant ancient history to most people now, the Microsoft anti-trust case was pretty exciting stuff at the time. Highlights included Larry Lessig being made Special Master to the court and Microsoft...


Although it probably seems like impossibly-distant ancient history to most people now, the Microsoft anti-trust case was pretty exciting stuff at the time.

Highlights included Larry Lessig being made Special Master to the court and Microsoft objecting (sadly, it eventually got Lessig taken off the case.) The judge's final "remedy" was to split up Microsoft into two parts: one for operating systems, the other for everything else. Then we had a change of US government, and a much watered-down final settlement that did nothing of the kind.

That settlement, such as it was, is finally winding down:

Attorneys for the Department of Justice and several states told a judge on Wednesday that they would not raise any objections to next month's expiration of Microsoft's decade-old antitrust settlement with the U.S government.

In a brief filed prior to the hearing, the plaintiffs said Microsoft "has met the goals of the wind-down plan." The May 12 expiration will now kick in automatically, as no further court hearings are planned.

By one of those amazing coincidences, here's Barnes & Noble invoking anti-trust in another context that also involves Microsoft [.pdf]:

On information and belief, as part of Microsoft's recently announced agreement with Nokia to replace Nokia's Symbian operating system with Microsoft's own mobile device operating system, Microsoft and Nokia discussed and apparently agreed upon a strategy for coordinated offensive use of their patents. Indeed, in videotaped remarks made two days after the Microsoft-Nokia agreement was announced, Nokia's CEO Stephen Elop confirmed that Microsoft and Nokia had discussed how their combined intellectual property portfolio is "remarkably strong" and that Microsoft and Nokia intended to use this combined portfolio both defensively and offensively. 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.

As you can tell from the bizarre language ("on information and belief"), this is from a legal document: it's Barnes & Noble's response to Microsoft's earlier claims of alleged patent infringement by that company:

Microsoft Corp. today filed legal actions in the International Trade Commission and the U.S. District Court of the Western District of Washington against Barnes & Noble, Inc. and its device manufacturers, Foxconn International Holdings Ltd. and Inventec Corporation, for patent infringement by their Android-based e-reader and tablet devices that are marketed under the Barnes & Noble brand.

More details of those patents are given by Microsoft's Horacio Gutierrez, Corporate Vice President and Deputy General Counsel:

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.

As you can see, Microsoft is claiming to have "created" advanced features like selecting text in a document (gosh, how on earth did they come up with that brilliant idea, I wonder?)

Not surprisingly, Barnes & Noble too are unimpressed with these pathetic patents and their "trivial features":

The Nook and Nook Color do not infringe any valid claim of the '372, '780, '522, '551, and '233 patents and none of these trivial features serve as a basis for customer demand for these products. 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.

And it goes on to say:

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 Android operating system and other open source operating systems. Microsoft's conduct directly harms both competition for and consumers of eReaders, smartphones, tablet computers and other mobile electronic devices, and renders Microsoft's patents unenforceable.

Now, IANAL, so I can't say to what extent this is just standard lawyer bluff and bluster. But I don't recall seeing similar wording in other cases, so I think it's interesting that Barnes & Noble have explicitly accused Microsoft of attacking the Android world because it represents a threat to its own smartphone system. Moreover, the filing does include a lot of detailed information suggesting that there is prior art for those patents, so it's not just saying "your patents are trivial": it's saying "here's who did it before you".

It's great to see Barnes & Noble making such an aggressive response to Microsoft's patent bullying. Too often, companies just roll over and cough up some dosh to make the problem go away, even if they know they are in the right. As I wrote the other day about Apple, litigation rather than innovation is seen as the best way of attacking competitors; it would be wonderful if Barnes & Noble's approach represented the beginning of the end for this abuse of the patent system.

It's also extremely interesting to see here the battle framed as Microsoft using its (intellectual) monopolies to attack competitors unfairly. That's exactly what it was found guilty of during the anti-trust case ten years ago. Would it be too much to hope for version 2.0 of that fascinating exercise – maybe with a rather more effective outcome?

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