Barnes & Noble defense narrows against Microsoft patent claims

An administrative law judge apparently tosses out a piece of the bookseller's defense against Microsoft's claims that the Nook violates the software giant's patents.

Jay Greene
Jay Greene Former Staff Writer
Jay Greene, a CNET senior writer, works from Seattle and focuses on investigations and analysis. He's a former Seattle bureau chief for BusinessWeek and author of the book "Design Is How It Works: How the Smartest Companies Turn Products into Icons" (Penguin/Portfolio).
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An administrative law judge has apparently eliminated one possible defense for Barnes & Noble, a week before the giant bookseller squares off against Microsoft in a hearing over a patent dispute.

Administrative Law Judge Theodore Essex today granted Microsoft's request to dismiss Barnes & Noble's "patent misuse" defense, a filing first picked up by software patent blogger Florian Mueller. (Microsoft has previously paid Mueller to conduct a study on its behalf.) The U.S. International Trade Commission, which is hearing the dispute, only revealed the ruling's heading--"Initial Determination Granting Microsoft's Motion for Summary Determination of Respondents' First Affirmative Defense of Patent Misuse."

The Nook Color, a target of Microsoft's lawsuit Barnes & Noble

But sources familiar with the case said the decision eliminates one defense Barnes & Noble hoped to use to defend against claims brought last year by Microsoft that the Nook e-reader and the Nook Color tablet infringed on Microsoft's patents. As part of its broader campaign against Android, Google's mobile operating system that powers the Nook, Microsoft accused Barnes & Noble of violating specific patents that cover the way users tab through various screens on the Nook to find the information, as well as the way they interact with documents and e-books.

A spokeswoman for Barnes & Noble declined to comment on the ruling.

"Today's action by the ITC makes clear that Barnes & Noble's patent misuse defense was meritless," David Howard, Microsoft corporate vice president and deputy general counsel, said in a statement. "This case is only about one thing--patent infringement by Barnes & Noble's Android-based devices. We remain as open as ever to extending a license to Barnes & Noble, and invite them to join the many other major device makers in paying for the Microsoft-developed intellectual property they use in their devices."

Essex's ruling, though, did not address two far more important pieces of Barnes & Noble's defense. The judge didn't rule on the validity of Microsoft's patents, nor did he determine whether Barnes & Noble infringed on those patents. Indeed, Essex may be cleaning up the docket to get the two companies to focus on the key matters at the heart of the case in advance of hearings that begin February 6.