An on-staff attorney with the US International Trade Commission (ITC) believes that ebook reader maker Barnes & Noble should win a patent-infringement lawsuit brought against it by Microsoft. And this attorney is recommending that the ITC judge overseeing the case find no violation.
But hold the presses. This case isn't over just yet.
"This was a preliminary argument by the Office of Unfair Import Investigations staff attorney, which was filed before the presentation of the evidence at the hearing has occurred," a Microsoft representative said, clarifying the news. "The OUII staff may change its position after the hearing. Additionally, the administrative law judge will hear the evidence and arguments at the hearing and will come to his own conclusion."
The news comes on the eve of the historic hearing between Microsoft and Barnes & Noble, just one of several major legal battles in the mobile patent wars that have swept through the industry over the past few years. Microsoft has thus far been very successful at getting competitors to license its mobile patent portfolio for undisclosed fees, and avoiding such entanglements. But Barnes & Noble is a rare holdout.
To be clear, this recommendation doesn't mean that Barnes & Noble is about to win the case. The staff attorney is considered an outside third party by the court, and the first hearings in the case—scheduled for this week—will continue as planned. And the attorney's opinion could very well change based on the evidence presented during this hearing.
Barnes & Noble's NOOK ebook reader and tablet line runs on Google's free but legally questionable Android platform, which is at the heart of the case. As with Linux before it, Microsoft is pursuing a strategy in which it obtains patent-licensing agreements from hardware makers that use Android.
Most companies have signed up rather quickly, with Android licensees such as Acer, Compal Electronics, General Dynamics Itronix, HTC, LG, Onkyo, Quanta Computer, Samsung, Velocity Micro, ViewSonic, and Wistron all agreeing to Microsoft's terms. According to the software giant, over 70 percent of all Android devices sold today carry a Microsoft patent-licensing fee of some kind.
Barnes & Noble must defend its use of three technologies that Microsoft claims to have patented. The covered technologies include a method for digital note-taking in ebooks, a performance-enhancing display method that shows text first and then the screen background, and a way to select text while altering its size.
According to a report by my Windows Weekly cohost Mary Jo Foley, the attorney opinion is just one of many factors that will be weighed by an ITC judge. That judge's ruling will be approved or modified by a six-member ITC Commission, and the final ruling can then be appealed by either side. The first step in this process—the judge's initial ruling—won't come before late April, and it could be several months before the final ruling is available.
Should Microsoft win the case, it could achieve a ban on NOOK devices in the United States.