Barnes & Noble pummels Microsoft patents with prior art
itworld.com
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It comes from the statute though, so a court isn't really free to just ignore it. Changing this presumption would take congressional action.
Samsung, HTC, Dell, etc... all have other cross cutting businesses that could influence whether they play ball with MS on issues like mobile patents, B&N has no such constraints.
EDIT: In addition the Nook is probably the lone shining star in the B&N business, they can't surrender a single point of margin if they don't have to. If the Nook becomes untenable as a business B&N could become untenable as a business and sooner or later they'll go the way of Borders Books.
They really have little to lose by pursuing this case which really frees up their legal team politically.
Every time I go in to a B&N physical store, it's packed. They're one of the few stores I'll go to just for the experience of going in there. They're relaxing. They're pleasant places to be.
Certainly, book sales face stiff online competition, but I find it hard to believe that a company with 705 physical locations that people want to be in, (plus 636 college book stores), can't find a way to make a profit even if the Nook should fail.
BN.com has made its prices competitive with Amazon (finally!). I got an offer for a BN credit card, similar to the Amazon Visa, in the mail a few days ago. BN might finally be making a real play against Amazon. It might be too late, but it's nice to finally find them in the game.
I wonder of BN's stores will evolve in an Apple Store-like direction, with physical book sales that happen to match online prices.
I don't think it's too late - Amazon has a philosophy that seems to indicate different strengths than B&N. Apple has proven that brick&mortar stores combined with a powerful brand can work for content and device sales.
Further, in order for B&N to thrive, Amazon doesn't have to lose...
And there's the problem - it's packed because people are in there just for the experience of going in there. That doesn't pay the bills.
Perhaps it would make sense to have fewer aisles and make the whole store more cafe-like? It would be different from what they have now, but if the alternative is slowly going out of business due to online competition, it would be a way to do something online simply can't do.
Isn't B&N one of the few places to still carry a large selection of Music?
My local store is renovating about 1/4 of their floor space to be occupied by Nook products. When you walk in to the store, your are greeted by a salesperson who asks if you are buying a Nook.
> What's interesting to me, as a clear layman observer, is why Microsoft didn't know that it would be so easy to find so much evidence of prior art against these five asserted patents.
Obvious answer, based on experience of large organisations: Legal and engineering are in different silos and don't talk to each other, except through senior management with limited bandwidth and legal/engineering understanding.
But the point I was getting at is that I suspect that in this kind of case the selection of patents to put in the legal case against B&N was down to the lawyers picking from a long list, and the chances of them asking the engineers whether they'd stand up in court were reduced due to the organisational structure.
Also, take this with a grain of salt, but I vaguely recall reading somewhere that using prior art in court to invalidate a patent is much more difficult than we assume.
The parent to your comment - by mhw - is pretty darned close. At Microsoft, legal and engineering are in different silos and don't talk to each other, except through senior management with limited bandwidth and legal/engineering understanding and also - in my experience, and to some extent - program managers.
Developers (at least) are told not to look at patents or patent applications. I'd be surprised if PMs were told differently.
Does MS Legal have engineers on staff to determine if something is worthy of a patent and to look for prior art? That's a possibility. But your "more likely" (granted - it's your opinion) doesn't seem incredibly likely (in my opinion.)
http://m.paidcontent.org/article/419-why-tech-companies-want...
A peculiarity of the U.S. patent system is that the size of the penalty is larger if the party accused of infringement is shown to have "knowingly" infringed. This is intended to punish deliberate malign behavior more severely than accidental infringement, because there is a lower penalty if you didn't realize there was a patent to violate.
However, the second order effect is that accurate knowledge of patents is a legal liability. When considering whether a party "knows" about a patent, any engineer in the company would count. If Bob reads Patent A and Sally writes code that infringes Patent A, it's difficult for their company to prove that Bob never said anything to Sally. And why even take on the burden of that proof? As a practical matter, the potential legal cost of the larger infringement penalty outweighs the potential benefit of searching beforehand to ensure you aren't infringing.
When I joined Microsoft, part of the instructions given to all new employees was that you should never view any patent, anywhere, ever, no matter what. Even if there is some reason why knowledge of patents is necessary, you should not try to search for or view those patents yourself, because if you look at a page of 50 patent search results to find the one you want, someone could argue you "know" about the other 49. This is arguably ridiculous, but when your goal is reducing legal costs, you must avoid even the possibility of ridiculous arguments, because arguing back requires time from lawyers.
Standard operating procedure is for engineers to know nothing about patents and the legal department to make all patent-related decisions. Naturally, the legal department makes those decisions with the goal of maximizing profit from lawsuits against other companies and minimizing loss from lawsuits by other companies. The process deliberately and explicitly eliminates the possibility that accurate knowledge of software and hardware will be applied to patent decisions, because the only people with that knowledge are engineers, and letting engineers know about patents increases your legal risk.
Since the Patent Office also does not have the manpower or technical resources to make accurate decisions about engineering patents, and in any event is not incentivized to reject patent claims, patents on average bear no relation to reality. They're determined entirely by what you can get away with in court.
I had thought that if some entity was to properly assert their patent rights, they had to make the specific patent claims known to the parties concerned which gives a period of time for the potentially infringing company to rectify, or to progress further into arbitration. Microsoft seems to be playing it like a organized crime protection scheme.
For what it's worth, the relatively recent KSR v. Teleflex case gives us the current opinion of the Supreme Court in non-obviousness battles. In that case, they slid the scale back to favor the Graham[1] test for non-obviousness, rather than the controversial teaching-suggesting-motivation test, which tries to determine whether something in the prior art suggests the desirability of combining the claimed subject matter, and thus its obviousness. Now, the Graham test (which was a 1966 decision) allows for empirical evidence of non-obviousness, to wit: commercial success, long-felt but unsolved needs, and failure of others to invent the patented subject matter.
All of these are issues that need to be litigated in federal court, an exceptionally expensive endeavor that no corporation will take without a very strong incentive.
[1]: http://en.wikipedia.org/wiki/Graham_et_al._v._John_Deere_Co.....
One day, here comes Microsoft demanding from B&N a license fee per device for some obvious patents. Since B&N is building a platform that sell high margin products (e-books), the license fee is likely to be affordable....at least until Amazon comes along with patents for a "online bookstore"... Yet... What a perfect opportunity to rack up a storm, raising awareness of the ridiculous patents owned by existing companies!
It is in B&N's interest to devalue existing patent portfolios of their current and future competitors in the tech industry, and they are trying to do exactly that. Even if the plan fails and politicians are unmoved, future tech companies may think twice before threatening B&N with a patent lawsuit... B&N is actually going to bother to find all the pieces of prior art!
We shouldn't be surprised a bookstore is fighting against software patents, because we know an existing technology company, with software patents valued at billions, are definitely not going to do it. It had to be a large company that could afford such a fight but the large company had to not have invested heavily into a technology business. Companies with no stake in a technology business would have no interest in demolishing software patents... unless it is moving into it. What companies making such a move? A company that is facing a fast declining market for its products.[1]
Such a company can only be a bookstore. [2]
[1] If it wasn't fast declining, they wouldn't be doing anything. Imagine putting a frog in a slow cooker, compared to putting a frog in boiling water.
[2] It could have been a company in the music industry... but I think it might be too late for those guys. All they can do is try to hang on to what they've got.