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ITC Recommends Finland and Canada Help Barnes & Noble Get Evidence from Nokia and MOSAID ~pj
Thursday, December 08 2011 @ 12:07 PM EST

It appears we will soon be finding out a lot more about the Nokia-Microsoft deal and the Microsoft-Nokia-MOSAID agreement and the entire Microsoft patent strategy against Android.

The International Trade Commission has granted [PDF, 70 pages] Barnes & Noble's request that the ITC recommend that Barnes & Noble be granted international assistance from the Ministry of Justice of Finland under Article 3 of the Hague Convention to obtain testimony from Stephen Elop, CEO of Nokia, and other key executives of the company, as well as help to obtain certain documentary evidence, like the signed agreements between the three entities Microsoft, Nokia and MOSAID.

The ITC also granted Barnes & Noble's request for permission to seek evidence from MOSAID Technologies, a Canadian corporation, via a letter rogatory. The Administrative Law Judge ruled [PDF] that it was evidence that is "reasonably necessary to investigate fully Barnes & Noble's affirmative defense of patent misuse against" Microsoft, so he recommended to the US District Court for the District of Columbia that it issue the letter rogatory.

Why two different processes? You go one way if the country, like Finland, is a signatory to the Hague Convention, and another way if the country, like Canada, is not. Remember that these are both requests, not demands. Canada can say no. In theory, so can Finland, but given the treaty involved, it would seem it would be unlikely.

There is quite a long list of topics Barnes & Noble would like testimony on. There is a protective order, which is attached as an exhibit, that restricts the trade secrets and the usual exceptions to public disclosure, so Barnes & Noble will know more than we will, but what I love about litigation is that you learn a lot more than via any other route. I know I'd like to know why Nokia decided to do the deal with Microsoft and what the goal is. It seems to me to be committing suicide as a company. Was the plan more about money from patents than from selling phones?

Here is the list of what the executives will be asked to give testimony about:

a. The subject matter of the documents produced in response to this request.

b. Discussions Nokia has had with Microsoft or MOSAID Technologies Incorporated ("MOSAID") relating to Barnes & Noble's NookTM and Nook ColorTM products.

c. Communications and agreements with Microsoft or MOSAID concerning the assertion of patent rights against devices using the AndroidTM Operating System or other open source operating system.

d. The agreement or partnership with Microsoft announced on or about February 11, 2011, including Nokia's or Microsoft's strategy or rational regarding its decision to enter into the agreement or partnership.

e. The agreements entered into by Microsoft and Nokia on or about April 21, 2011.

f. The role of Nokia's CEO Stephen Elop in developing a coordinated strategy with Microsoft to compete with the AndroidTM Operating System or any other open source operating system.

g. Discussions between Nokia and Microsoft, including any discussions between CEO Stephen Elop and Microsoft CEO Steven Ballmer, about Nokia's and Microsoft's partnership agreement, Nokia's and MIcrosoft's combined patent portfolio, the AndroidTM Operating System or other open source operating system.

h. Nokia's knowledge of U.S. Patent No. 5,778,372, U.S. Patent No. 5,889,522, U.S. Patent No 6,339,780, U.S. Patent No. 6,891,551, U.S. Patent No. 6,957,223, U.S. Patent No. 5,579,517, U.S. Patent No. 5,652,913, U.S. Patent No. 5,758,352, U.S. Patent No. 6,791,536 and U.S. Patent No. 6,897,853, or any other patent(s) that Nokia, Microsoft, or MOSAID claims controls or dominates the AndroidTM Operating System or other open source operating system.

i. Nokia's offensive and defensive use of its patent portfolio after entering its partnership with Microsoft in February 2011, including its licensing practices and litigation strategy.

j. Nokia's business plans or strategies relating to open source software, including its business plans relating to the AndroidTM Operating System or other open source operating system.

k. The impact or effect of the AndroidTM Operating System or other open source operating system on Nokia's or Microsoft's businesses, including businesses relating to mobile devices and tablet computers.

l. Nokia's and Microsoft's plans, strategies or efforts to increase their collective share or individual shares of the mobile device market, mobile operating system market or PC operating system market.

m. The current or projected market share, including global market share and the U.S. market share, of mobile devices and mobile operating systems.

n. The agreement entered into by MOSAID and Core Wireless on or about September 1, 2011.

o. The agreements entered into by Microsoft, Nokia and MOSAID on or about September 1, 2011.

p. Nokia's strategy or rationale regarding its decision, announced on or about September 1, 2011, to enter into a revenue sharing arrangement with Microsoft and MOSAID.

q. MOSAID's planned or predicted offensive or defensive use of patent rights, including regarding the patent portfolio of Core Wireless or any potential role played or to be played by Microsoft or Nokia in licensing or asserting MOSAID's patents.

You know what I was thinking as I typed up this list? That all that trash talk by Microsoft about how it had patents that Linux was infringing was so much hot air. Android runs on the Linux kernel, and in order to effectively assert patents against Android, Microsoft didn't reach into its own cupboard. Well, it did, against Barnes & Noble, but the patents from Microsoft's store are patents that Barnes & Noble calls trivial and worthless. Microsoft, it appears, did this deal with Nokia and MOSAID to get access to patents it thought might actually work. Funny. Or sad. Microsoft is what it is, but think about the companies that signed up for the Microsoft patents.

The executives can refuse to give evidence, the ITC document states, "only insofar as he or she has a privilege or duty to refuse to give evidence under the laws of the United States or the laws of Finland". I know nothing about the laws of Finland, so I can't speak to the odds of that. Regarding US law, the document states that a witness can only refuse to answer a question if it would disclose confidential communications between him or her and his or her attorney or "if such answer ... would subject him to a real and appreciable danger of criminal liability in the United States." So, I gather, if Finland agrees to go forward, the executives will have to sing like birdies.

Here's the list of the documents that Barnes & Noble wants to see:

a. The agreements entered into by Microsoft and Nokia on or about February 11, 2011 and on or about April 21, 2011.

b. The agreements entered into by Microsoft, Nokia and MOSAID on or about September 1, 2011.

c. The analyses created in preparation for and in conjunction with the agreements specified in subsections (a) and (b) with respect to Microsoft and Nokia's combined patent portfolio.

d. The analyses created in preparation for and in conjunction with the agreements specified in subsections (a) and (b) with respect to the patents infringed by the AndroidTM Operating System.

e. The analyses created in preparation for and in conjunction with the agreements specified in subsections (a) and (b) with respect to the threat posed by the AndroidTM Operating System to Nokia's business model.

f. The analyses created in preparation for and in conjunction with the agreements specified in subsections (a) and (b) with respect to the patents infringed by Barnes & Noble's Nook products.

g. The analyses created in preparation for and in conjunction with the agreements specified in subsections(a) and (b) with respect to the competition posed by Barnes & Noble's Nook products.

You know what I'd like to ask Elop? Whether there were any discussions with Ballmer or any other Microsoft executive while he was still at Microsoft about the now-playing-out patent strategy of Nokia and Microsoft. Was he sent as an emissary, so to speak?

So, does this not seem like we are about to find out a lot more about the patent strategy of this triumvirate of Microsoft, Nokia and MOSAID than we expected? This is in connection with the dispute at the ITC. There is also Microsoft patent litigation against Barnes & Noble in US District Court, a case which is otherwise stayed while matters go forward at the ITC and perhaps, if they accept the Barnes & Noble antitrust complaints against Microsoft as worth pursuing, by the US Department of Justice.

Barnes & Noble, if you recall, told the court in support of its request for permission to seek a letter rogatory:

As part of that affirmative defense, Barnes & Noble has alleged that Microsoft is using its licensing practices to improperly broaden the scope of its patents in an attempt to dominate mobile operating systems such as Android that threaten Microsoft’s monopoly in personal computer (“PC”) operating systems.
It believes that MOSAID is a key element in the Microsoft-Nokia partnership strategy, and that's why it wants evidence from MOSAID.

Here's the latest on the ITC docket:

12/02/2011 - 465763 - Agreement to be Bound by the Protective Order of Jennifer E. Nicholls

12/02/2011 - 465819 - Agreement to be Bound by the Protective Order of Stephen J. Smith

12/02/2011 - 465817 - Granting Respondents Barnes and Nobles, Inc.'s and barnesandnobles.com LLC's Motion to Approve Request for International Judicial Assistance in Procuring Evidence from Nokia Corporation

12/02/2011 - 465814 - Granting Respondents Barnes and Noble, Inc.'s and barnesnoble.com LLC's Motion for Recommendation to the United States District Court for the District of Columbia to Issue a Letter Rogatory for Evidence from Mosaid Technologies Inc.

12/02/2011 - 465889 - Agreement to be Bound by the Protective Order of Adam Di Cola, Eileen Mulvenna Goldstein and Jennifer S. Walker

12/05/2011 - 465902 - Request for International Judicial Assistance Pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters

12/05/2011 - 465943 - Joint Unopposed Motion for Leave to Take Two Expert Depositions After Close of Expert Discovery

12/05/2011 - 465944 - Agreement to be Bound by the Protective Order of Ross C. Paolino

12/05/2011 - 465977 - Agreement to be Bound by the Protective Order of Janet A. Hamilton

12/06/2011 - 465997 - Agreement to be Bound by the Protective Order of Shari R. Broussard and David Cooper

12/06/2011 - 466106 - Agreement to be Bound by the Protective Order of Elizabeth M. Kondor, Peter Cooper, Patricia A. Carruthers, Susan Magee, Paula Satkin and Aric Kerhoulas

12/07/2011 - 466113 - Supplemental Joint Stipulation Regarding Importation of the Nook Tablet


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