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Some Really Good News for Barnes & Noble; and Microsoft Withdraws Another Patent ~pj
Tuesday, February 07 2012 @ 12:04 AM EST

The big news being reported by Bloomberg is that Jeff Hsu, a staff attorney at the ITC, said in an interview he will be recommending that ITC Judge Theodore Essex find Barnes & Noble has not infringed three Microsoft patents. Essex rules in April on that.

If I were a FUDster, I'd write that this means Barnes & Noble has prevailed, but I just tell you the truth, which is that this is one step in a longer process. It is, undeniably, however, fabulously good news for Barnes & Noble.

It is also not a total surprise, in that the quality of Microsoft's patents is pitiful. It may also explain why Microsoft keeps dropping patents from the case. Microsoft says it's doing it to "streamline the investigation":

Pursuant to 19 C.F.R. § 210.21(a)(1), in order to streamline the investigation, Complainant Microsoft Corporation hereby moves for partial termination of the investigation as to U.S. Patent No. 5,889,522 ("the '522 patent"), based on partial withdrawal of the Amended Complaint as to the '522 patent. The investigation will continue as to U.S. Patent Nos. 5,778,372, 6,891,551, and 6,957,233.
And you can believe that explanation if you want to. Or, you can take another quick look at all the prior art Barnes & Noble presented to the ITC regarding Microsoft's patents, including the '522 patent.

There were 80+ examples of prior art for the '522 patent listed by Barnes & Noble, including 35 patents that issued before Microsoft applied for the '522 patent and even a Microsoft guide to programming from 1992 published by Microsoft Press *itself*. One would have thought the Microsoft lawyers would have done some simple searching before suing people, no? But then think of all the companies that have signed up for a license rather than get sued over Microsoft's stupid patents. I'm looking at you, Amazon.

That's exactly what's wrong with the current patent system, by the way, among many other things, that a patent holder can bully other companies into paying for thin air.

Buh-bye ridiculous '522 patent.

It could resurface later. Microsoft typically does not allow cases to reach a final decision if it thinks it might lose. That way, the claims live to fight against the next victim, I guess. So what I believe is that it is dropping the '522 patent because it's a stupid patent that won't survive a close examination, but it might come in handy in private negotiations over a license if folks aren't paying close attention or who'd just rather pay than be sued.

It really offends me that Microsoft filed this case at all, given the quality of the patents asserted, or the lack thereof. They have patent lawyers. So I think they have to know. And Barnes & Noble is the last large paper bookseller in the US and it is already struggling. The Nook is a winner for them. Yet, in this context, Microsoft didn't mind thrusting its sword into Barnes & Noble's heart anyway.

Some things never change.

Here are the latest filings:

02/01/2012 - 470773 - Notice of Change of Address

02/01/2012 - 470798 - Agreement to be Bound by the Protective Order of Steve Jenkins, Matthew Simmons and Peter Lawson

02/02/2012 - 470842 - Complainant Microsoft Corporation's Unopposed Motion for Leave and Memorandum in Support to File Responses to Respondents' High Priority Objections Out of Time

02/02/2012 - 470926 - Unopposed Motion of Complainant Microsoft Corporation for Partial Termination of the Investigation as to U.S. Patent No. 5,889,522

02/03/2012 - 471041 - Agreement to be Bound by the Protective Order of Nicholas Bronson and Alan Ruffier

02/06/2012 - 471076 - Initial Determination Granting Microsoft's Motion for Summary Determination that It Has Satisfied the Economic Prong of the Domestic Industry Requirement

As usual, lots of sealed documents. That last one, about Microsoft satisfying the economic prong of the domestic industry requirement doesn't mean much, just that Microsoft is in business in the US. Here's a better explanation, from the law firm of Steptoe & Johnson:
To prevail in a Section 337 proceeding, a complainant must establish that an industry “relating to the articles protected by the patent... exists or is in the process of being established” in the United States. 19 U.S.C. § 1337(a)(2). This domestic industry requirement consists of two prongs: an economic prong and a technical prong. The relationship between the two prongs was recently reaffirmed in an order issued by Judge Rogers of the US International Trade Commission (“ITC”) in Certain Printing and Imaging Devices and Components Thereof (Inv. No. 337-TA-690, Order No. 26, April 22, 2010). The order is available online.

To satisfy the economic prong of the domestic industry requirement, a complainant must show that one of the economic activities set forth in subsection 19 U.S.C. § 1337(a)(3) has taken place or is taking place with respect to articles protected by the asserted patents. The relevant economic activities are (A) significant investment in plant and equipment; (B) significant employment of labor or capital; or (C) substantial investment in exploitation, including engineering, research and development, or licensing. 19 U.S.C. § 1337(a)(3). The first two categories of economic activity generally require the complainant to show that significant manufacturing-related activities are taking place in the United States, while the third addresses other activities that may be considered in situations where there usually is no US manufacture of articles covered by the patents in suit.

Generally, to satisfy the technical prong of the domestic industry requirement, a complainant must establish that it has a domestic product that practices at least one claim of each asserted patent. "The test for satisfying the 'technical prong'... is essentially [the] same as that for infringement, i.e., a comparison of domestic products to the asserted claims." Alloc, Inc. v. Intl Trade Comm'n, 342 F.3d 1361, 1375 (Fed. Cir. 2003). However, the ITC's jurisprudence long ago clarified that the claim used to establish a domestic industry need not be one of those alleged to be infringed. Certain Microsphere Adhesives, Process for Making Same and Products Containing Same Including Self-Stick Repositionable Notes, Inv. No. 337-TA-366, USITC Pub. 2949 (Jan. 1996). That concordance between the domestic product and the asserted claims is not required is supported both by the statutory language of Section 337, which refers only to patents, not patent claims, that have been violated, as well as by the legislative history, which made clear that “Congress intended the 1988 amendments to liberalize the domestic industry requirements.” Id.

Finally, #470842 is a little bit funny and a little bit sad. Microsoft had "technical difficulties" filing on time, so now it's asking for permission to let its late filing count, in essence. It seems the ITC didn't accept a filing with live hyperlinks, so they missed the deadline due to laboriously searching for and fixing 340 pages to get rid of the hyperlinks. Dear me, I have a suggestion. Microsoft should try GNU/Linux. It can do such things without having to do it by hand. Five minutes, and poof! Done.

I know. Somebody somewhere will pop up and tell me Microsoft has some tool that is just as good or better. OK. Why, then, would it be an excuse to miss a deadline because of fixing by hand, instead of using the tools available? Just asking.

Seriously though, you lawyers out there would do yourselves a real favor if you learn to use a GNU/Linux system and especially the command line. If I can do it, you surely can too. It's not hard. They have books, videos, and online courses at O'Reilly, so you don't even have to memorize complicated things. Just look it up if you can't remember. You'll save yourself soooo much heartache, and you won't have to ask judges for permission to file after you miss a deadline, which is always nerve-wracking.

Update: ars technica's Jon Brodkin has an analysis, including this from a patent lawyer:

While Barnes & Noble denies violating Microsoft's intellectual property, the company's main argument seems to be that the "the patents themselves are invalid," IP attorney Patrick Patras of Hinshaw & Culbertson LLP in Chicago, who has represented Hitachi and others in patent lawsuits, tells Ars.

Patents carry a presumption of validity making them difficult to overturn. But there are factors seemingly going in Barnes & Noble's favor. The ITC staff attorney's recommendation that Barnes & Noble get a favorable ruling is not binding, but it is a good sign, Patras said.

"The staff attorney is really acting as an independent third party in the litigation whose job is to protect the public interest," Patras said. "The fact you've got this independent third party who is sophisticated in patent matters, who has apparently reached the conclusion that Barnes & Noble should win, I think that speaks volumes."

While the article posits that a win by Barnes & Noble will make it harder for Microsoft to force licenses on new patent victims, I think that leaves out the Nokia-MOSAID partnership:
While the Barnes & Noble case is being decided long after most Android-using device makers settled with Microsoft, a decision in Barnes & Noble's favor could make it harder for Microsoft to obtain licensing fees from other vendors going forward. Microsoft is, presumably, putting some of its best patents forward in the case. This case may not be representative of all other Android litigations, because many patents are specific to smartphones, but a ruling that the patents are invalid would be a blow for Microsoft nonetheless.

"I think other parties that were approached by Microsoft would probably feel a little bit more confident in standing up to Microsoft in fighting for a better deal," if Barnes & Noble were to win, Patras said. "If they're found to be invalid or not infringed by Android, in a sense Microsoft then is going to have to rely on what they themselves view as less good patents."

It is Barnes & Noble, however, that is calling out Microsoft, Nokia and MOSAID, alleging that the partnership has as its goal being able to go after licensing money in the smart phone space. According to Barnes & Noble, the target is Android, and discovery is currently ongoing on that very issue.

  


Some Really Good News for Barnes & Noble; and Microsoft Withdraws Another Patent ~pj | 273 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Some Really Good News for Barnes & Noble; and Microsoft Withdraws Another Patent ~pj
Authored by: Anonymous on Tuesday, February 07 2012 @ 12:07 PM EST
"Microsoft says it's doing it to "streamline the
investigation":

And you can believe that explanation if you want to."

I do believe it! For if Microsoft doesn't drop them, they have
to explain why they patented something that was obvious, why
they wrote a poor quality and overbroad patent, etc. And that
will not be streamlined for "pay us now".

[ Reply to This | # ]

Off Topic Thread
Authored by: complex_number on Tuesday, February 07 2012 @ 12:17 PM EST
Anything 'on-topic' and you will be made to recite the whole of the Microsoft
'522 patent out loud whilst standing on one leg in Central Park, NYC.


---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Corrections here
Authored by: feldegast on Tuesday, February 07 2012 @ 12:56 PM EST
So they can be fixed

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

News picks
Authored by: feldegast on Tuesday, February 07 2012 @ 12:57 PM EST
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes transcribing
Authored by: feldegast on Tuesday, February 07 2012 @ 12:58 PM EST
Thank you for your support

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

frivolousness and negligence
Authored by: mcinsand on Tuesday, February 07 2012 @ 01:15 PM EST
To file for these patents was frivolous litigation, especially when the
'inventors' were skilled in the art as a matter of any exposure to the
technology. Then, the USPTO was negligent to have granted the patents. An
issued patent number, no matter how ridiculous the idea, is a potent weapon.
B&N will be out millions of dollars in legal fees, MS will spend money but
gain FUD, and the irresponsible individuals at the USPTO will pay no penalty
whatsoever.

The system will continue to degenerate until there is at least some
accountability for lack of diligence on the part of filers and the patent
organization.

[ Reply to This | # ]

Jeopardy Required?
Authored by: sproggit on Tuesday, February 07 2012 @ 01:32 PM EST
I read this article with a growing sense of indignation - largely at the
injustice of a legal system that is supposed to provide justice for all.

But rather than just rant, here's a suggestion:

Working on the basis that in a court cases, the *Plaintiff* gets to choose
whether or not to go to court, but the *Defendant* has much less choice, how
about some kind of 'jeopardy' rule for plaintiffs:-

If you go to court to sue someone over patent misuse, and in the proceedings the
defendant provides citations of valid prior art, then not only does a request
for a fast-track patent revocation automatically get filed with the USPTO, but
there will further be direct sanctions against both the *plaintiff* and the
*plaintiff's counsel*.

In a court case over patents, as with all cases, counsel are first and foremost
officers of the court. [ Thanks for that insight, PJ ]. As such, with a primary
duty to upholding the truth and justice of the *court*, any legal team that goes
to court *without* having performed even the basics of presuming that the
plaintiff has a legitimate case and a valid patent, surely deserves everything
they get, up to and including some form of economic or similar sanction. Say
economic: they have to pay their fees to charity or something.

I'm sorry to make light of the idea, but perhaps you can see where I'm trying to
get to with this. If Barnes and Noble were able to cite such extensive prior
art, then there is no way that MS should be allowed to pull the patent off the
table in the hope that they can get to use it again, somewhere else.

It's as though they have been court red handed trying to break [or at least
trick] the law and seem to think that if they run away fast enough they can try
again...

Could a small private individual achieve this? How about failing to pay your
taxes until the day court proceedings start against you, then turning up with an
envelope of cash? Think that would wash with the Court? Exactly. So why should
large Corporations get away with something all too similar?

There is one rule for the conglomerates with the corporate lawyers and another
rule for everyone else. And we get to vote for the people that pass the laws and
elect the judges that make all this possible...

[ Reply to This | # ]

Autocorrect strikes again
Authored by: Anonymous on Tuesday, February 07 2012 @ 05:07 PM EST
Maybe the Microsoft lawyers should
uncheck the "autocorrect urls to
hyperlinks" box.

I know Word Perfect doesn't do that
:)

--Jpvlsmv, not logged in

[ Reply to This | # ]

Full blown GNU/Linux not needed
Authored by: Anonymous on Tuesday, February 07 2012 @ 05:32 PM EST
They don't even need a full GNU/Linux system to make use of
the tools that would have made their job a piece of cake.
They could have just gone with a small install of cygwin on
their laptops/desktops and keep their MS-Windows!

[ Reply to This | # ]

The elusive Cockburn Report thread -- N/T (what did you think?)
Authored by: BJ on Wednesday, February 08 2012 @ 06:16 AM EST
 

[ Reply to This | # ]

Great 'tude, dude!
Authored by: Anonymous on Wednesday, February 08 2012 @ 11:11 AM EST

Microsoft had "technical difficulties" filing on time, so now it's asking for permission to let its late filing count ... [T]he ITC didn't accept a filing with live hyperlinks, so they missed the deadline due to laboriously searching for and fixing 340 pages to get rid of the hyperlinks. Dear me, I have a suggestion. Microsoft should try GNU/Linux. It can do such things without having to do it by hand. Five minutes, and poof! Done. ...

Seriously though, you lawyers out there would do yourselves a real favor if you learn to use a GNU/Linux system and especially the command line. If I can do it, you surely can too. It's not hard. They have books, videos, and online courses at O'Reilly, so you don't even have to memorize complicated things. Just look it up if you can't remember. You'll save yourself soooo much heartache, and you won't have to ask judges for permission to file after you miss a deadline, which is always nerve-wracking.

Great 'tude, dude! A statement like that could only have been made by a typewriter. Come to think of it, perhaps we would all be better off using typewriters.

I'm sure your argument will successfully convince a lot of lawyers to learn GNU/Linux just as much as I'm sure that I, a decades-long ham radio operator, can successfully convince you to learn and use Morse Code because it is a faster, better, and more reliable means of communication than texting on a cell phone. (And a statement like that could only have been made by a Vibroplex(R) bug.)

Seriously, take this from someone who not only knows Morse code, but who also hacked into a remote computer system in the 1960s using a KSR-33 Teletype and a loop of oiled paper tape with punches designed to override the "WHOIS" identification hard-wired onto a steel drum inside the Teletype machine. Lawyers -- especially litigation lawyers -- are not paid for, nor do they earn any Brownie points for having outstanding computer skills any more than computer programmers get anything extra from their employers for having exceptional legal skills.

When a medium to large size law firm has trouble with their computers, they call on their own IT department (or their IT consultants) to fix it for them. At that time, the lawyers may learn that some so-called IT experts have neither exceptional legal skills nor outstanding computer skills. Nor sometimes, for that matter, normal people or communication skills.

Let's face the facts. It's the programmers who are arguing that they can't write programs without bugs, not the lawyers. So don't blame the lawyers when the programs don't work the way they are supposed to.

I've written JCL for OS/360, written programs on 80 column punch cards, and written and edited programs using Teco, Jove, and Emacs. I've programmed PDP-1s, PDP-7s, PDP-10s, PDP-20s, Wang and HP scientific desktop computers, and BSD Unix (before the first lawsuits) on VT-100 terminals. I've been gainfully employed to write programs for scientific purposes, communications link simulations, and telephone systems. I've been a big advocate for GNU/Linux since my first Slackware distribution. I set up a network of GNU/Linux desktops in my home for my family. And I did this despite having been banned forever from a Linux IRQ help chat channel when I accidentally started two instances running and couldn't kill one of them within two seconds. (Literally!!! Talk about 'tude!!!) I've run Cygwin on my laptop and written full documents using LaTeX. I've made line drawings out of photographs using the GIMP. And I still maintain not only a home network, but also a multi-line VOIP system for my home phones.

But knowing how to do all these things does not win points (or an enhanced paycheck) from my employer. And, after all these years, I can see why. I made a change in mid-life that has made me an expert in a completely different area. The fact that I can have at least a glib understanding of all of these computer areas is quite useful, but I now earn my money from my expertise in the other area. The IT department is well-paid and is supposed to be there to handle most of these computer-related goofups -- assuming they can. Otherwise, I would have to waste my time doing something that the IT department is supposed to be able to do, at no charge to my clients and at no benefit to myself whatsoever.

I imagine many people who earn their living in other ways would relegate your advice to that given by the neighbor in a comedian's routine I saw on the Carson show two or three (or maybe even four!) decades ago. The comedian was not particularly memorable, but I'll never forget this particular joke, which I found particularly funny even though I was, myself, an engineer at the time: A neighbor meet the person moving into the house he just bought next door. The neighbor was an engineer, and happened to spot the movers moving a refrigerator into the house. He asked the person moving in, "Why are you buying a refrigerator when you can just build one yourself and save money?"

[ Reply to This | # ]

Staff attorney interview
Authored by: mattflaschen on Wednesday, February 08 2012 @ 11:28 PM EST

I don't know what the confidentiality rules or precedents are for ITC staff attorneys. However, this interview is disturbingly reminiscent of Judge Thomas Jackson's repeated interviews with the press during the Microsoft anti-trust trial.

Judge Jackson ruled that Microsoft had made serious anti-trust violations, and must be broken up. Those interviews were part of the reason Microsoft successfully appealed the break-up (and other parts of the decision), and the appeals court removed him from the case.

Judges and judicial officers should be careful to act in the public's best interests. However, there is no need for publicity which could prevent their judgements from being upheld.

[ Reply to This | # ]

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