Originally published November 8, 2011 at 6:04 PM | Page modified November 9, 2011 at 3:03 PM

Barnes & Nobles asks Justice Department to review Microsoft's patent accords

Barnes & Noble is asking the Department of Justice to review whether Microsoft's patent-licensing agreements with makers of Android devices are anti-competitive.

Seattle Times technology reporter

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Barnes & Noble is asking the Department of Justice to review whether Microsoft's patent-licensing agreements with makers of Android devices are anti-competitive.

"Microsoft is embarking on a campaign of asserting trivial and outmoded patents against manufacturers of Android devices," attorney Peter Barbur said in an Oct. 17 letter to a Justice official. "Microsoft is attempting to raise its rivals' costs in order to drive out competition and to deter innovation in mobile devices. ... Microsoft's conduct poses serious antitrust concerns."

Microsoft issued a statement Tuesday afternoon, saying: "All modern operating systems include many patented technologies. Microsoft has taken licenses to patents for Windows and we make our patents available on reasonable terms for other operating systems, like Android. We would be pleased to extend a license to Barnes & Noble."

A Department of Justice (DOJ) spokeswoman declined to comment. A Barnes & Noble spokesperson could not be reached.

The letter was an exhibit in a case before the U.S. International Trade Commission. In that case, Microsoft filed a complaint against Barnes & Noble, asserting that the bookstore chain's Nook e-reader and Nook Color tablets, which run on Google's Android software, infringe on some of Microsoft's patents.

Microsoft contends that certain features of Android infringe on the company's intellectual property. It has sued some of the companies that use Android in its devices as well as reached licensing agreements with 10 others. Those agreements typically involve paying Microsoft a royalty fee per device.

Barnes & Noble, in its Oct. 17 letter, referred specifically to a three-way licensing agreement among Microsoft, Nokia and MOSAID Technologies as the latest example of "Microsoft's strategy of attempting to maintain its monopoly in PC operating systems by controlling and dominating the Android operating system."

"Android, which Google gives away for free, threatens Microsoft's traditional business model of licensing its proprietary operating system because OEMs [original equipment manufacturers] no longer need to pay for a high-quality operating system," said the letter written by Barbur, an attorney at Cravath, Swaine and Moore. It was addressed to Gene Kimmelman, the DOJ's chief counsel for competition policy and intergovernmental relations.

Barbur asserted in the letter that Android devices "now perform many of the functions once reserved for PCs, a trend that will reduce demand for PCs and PC operating systems, where Microsoft's Windows enjoys a powerful monopoly. Moreover, as operating systems such as Android become more popular, Android will become a viable candidate for adaptation to PCs, putting Android (and its companion, Chrome) into direct competition with Windows."

Microsoft has reached licensing agreements with 10 smartphone and tablet manufacturers that use Android on devices they produce. Microsoft's position is that the patent agreements are intended to protect the investment the company has made in research and development over the years, and that it prefers to reach such agreements rather than battle it out in court.

A trial on Microsoft's patent claims against Barnes & Noble is scheduled for February, Bloomberg says.

Janet I. Tu: 206-464-2272 or

On Twitter @janettu.

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