Patent Lawsuit Over Android

By Alison Parker      

Reviewed by Jennifer Williams

Microsoft sued Barnes & Noble for patent infringement back in March, after the two failed to agree to licensing terms for Microsoft’s patents. The lawsuit claims that B&N’s NOOK and NOOK Color Tablets infringe on five of Microsoft’s user interface patents. Barnes & Noble says the patents Microsoft owns supply a “trivial and non-essential design element” of the Android phone–if that claim is found to be true, then the patents would be invalid. B&N also claims that the licensing fee Microsoft charges is equal to what Microsoft charges for the use of its Windows Phone OS. Nevertheless, many retailers who sell the Android phone have agreed to Microsoft’s licensing terms, but B&N adamantly refuses. So far, HTC, Samsung and Amazon have all agreed to sign licensing agreements with Microsoft.

Bloomberg reported that B&N has asked the Justice Department to investigate Microsoft for an antitrust violation because B&N believes that Microsoft is attempting to stifle competition in the mobile device market. reported that in a letter to Gene Kimmelman, the DoJ’s chief counsel for competition policy, Barnes & Noble argues that by demanding patent royalties for Android devices, “Microsoft is attempting to raise its rivals’ costs in order to drive out competition and to deter innovation in mobile devices.”

The trial between Microsoft and B&N is due to start in February 2012. I admittedly don’t know much about patent law, but from what I understand, under U.S. law, one who owns a patent has the right to exclude others from making, using, or selling their protected invention. The owner of the patent is able to obtain sole benefit of the patent by “withholding the practice of the invention” from others or the owner of the patent may license one or more parties to practice the invention. In the latter case, the owner of the patent may or may not opt to retain rights to practice the invention as well.

It seems like patents, which essentially grant monopolies, and antitrust law, which essentially prohibits monopolies, are completely contradictory doctrines of law. But, in reality both have the same end goal–to encourage competition. Patents encourage competition because a patent grants the owner exclusive use of their invention, as well as valuable licensing rights. Because no other inventor may claim a patent on the same invention, other inventors are forced to expand on and create an innovative, better version of the patented invention. Patent law also encourages inventors to create something entirely different than what is already patented but that can still compete in the same marketplace as the already patented invention. On the other hand, antitrust encourages competition by disallowing certain monopolies so that more players may enter the marketplace and compete with one another to ultimately deliver the best end result to consumers. And although it’s difficult to say how the court will rule in this case, its at least good to know that the theories of law which are ultimately at the crux of the judge’s decision are aimed toward the consumers’ best interests.





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