Barnes & Noble has subpoenaed Nokia and its patent-enforcement agency, Mosaid Technologies, as it defends itself against Microsoft's Android patent infringement lawsuit, according to documents filed with the US International Trade Commission.
As part of its $1 billion investment in Nokia earlier this year, Microsoft gained access to Nokia's more than 2,000 patents. Additionally, in September, Nokia extended to Microsoft its agreement with Mosaid, making it a threesome of patent sharing.
Barnes & Noble last month also asked the Department of Justice to investigate Microsoft's use of patents for antitrust violations. In a letter, Barnes & Noble asserted, "Microsoft is embarking on a campaign of asserting trivial and outmoded patents against manufacturers of Android devices."
Barnes & Noble is keen to showcase the patent-sharing arrangement between Nokia and Mosaid to support this accusation. Last month, Barnes & Noble subpoenaed both Nokia and Mosaid for a broad list of documents and information.
"The requested information will demonstrate that Microsoft is broadening its patent portfolio as part of its campaign to use minor patents to suppress competition from Android and protect its monopoly in PC operating systems," Barnes & Noble's lawyers wrote in documents filed with the USITC.
The bookseller wants Nokia and Mosaid to turn over documents and evidence of discussions pertaining to:
• The Nook.
• Asserting patents against Android or other open source operating systems.
• Nokia's knowledge of the patents that Microsoft, Nokia or MOSAID say Android violates.
• Details of Microsoft's agreement with Nokia, including rationale for it.
• The role played by former Microsoft executive and current Nokia CEO Stephen Elop in coordinating a strategy with Microsoft to compete with Android.
• Nokia's defensive and offensive use of its patents and its licensing strategies.
• Nokia's business plans regarding developing for Android.
• The impact of Android or any other operating system on Nokia's or Microsoft's business including tablets and evaluations/projects of market share.
• Mosaid's plans to use the intellectual property offensively or defensively.
So far, these documents have yet to appear for public consumption. Nokia and Mosaid independently filed motions to quash the subpoenas, or at least limit their scope. Among the arguments that Mosaid gave was, "Barnes & Noble requests a significant amount of financial data relating to MOSAID Technologies Incorporated's business dealings with Microsoft and Nokia. Because Microsoft was also a party to those business dealings, it also would be less costly and less burdensome for Barnes & Noble to obtain that information from Microsoft."
Like all stories involving the many patent lawsuits in the mobile industry, the story of Mosaid is full of intrigue. Mosaid is happy to sue, too. It has filed a patent infringement lawsuit against Cisco over Power over Ethernet (PoE). In September, Mosaid bought Core Wireless Licensing. Core Wireless was the original patent-license firm that had access to Nokia's patent stockpile. At the time, Mosaid said it would "fund its acquisition of the portfolio through royalties from future licensing and enforcement revenues."
Meanwhile, WiLAN in September started a hostile takeover of Mosaid, shortly after Mosaid announced its deal with Microsoft and Nokia. WiLAN is in the process of suing Apple, Cisco, Hewlett-Packard, HTC, Intel, Dell, Sierra Wireless and others for patent infringement on its stockpile of bought patents.
But on 28 October, venture capital firm Sterling Partners stepped in to buy Mosaid for $590 million and take the firm private, in a deal that is expected to close by January. The VC firm's success depends on keeping Mosaid shareholders from selling to WiLAN. As part of this purchase, Sterling promised: "Nokia and Microsoft have agreed to deliver consent to change of control, allowing retention of Core Wireless portfolio by MOSAID." As a private company, Mosaid would have far fewer requirements to publicly disclose information about its business dealings.
To keep score: There's the USITC investigation which seeks to stop B&N from importing Nook devices into United States after Foxconn makes them. There's the patent infringement lawsuit Microsoft filed against B&N in the U.S. District Court, Western District of Washington. If B&N has its way, there will also be a DOJ investigation into Microsoft. That's three federal agencies, a lot of lawyers and even more documents.
Microsoft has also been fighting to have much of the information Barnes & Noble is requesting declared confidential and not available to the public, according to documents filed with the USITC. The bookseller opposes that, too. "The monetary demand per device for Barnes & Noble's Nook Color is part of the non-confidential discussions between Barnes & Noble and Microsoft and cannot be seen as anything other than that," it declared in documents pertaining to its lawsuit.
While the actual amount per device that Microsoft has been demanding has not been made public, B&N did say in court documents, "Microsoft demanded an exorbitant royalty (on a per device basis) for a license to its patent portfolio for the Nook device and ... that it would demand an even higher per device royalty for any device that acted 'more like a computer' as opposed to an eReader." [PDF]
Some analysts have said that HTC pays Microsoft $5 per device. Rumor has it that Samsung could pay Microsoft as much as $15 per device, but the Samsung deal is also part of a broad cross-patenting agreement.