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Horacio Gutierrez

Microsoft Sues Barnes & Noble and FoxConn Over Nook Products

in Intellectual Property/Patents by
Horacio Gutierrez, Microsoft's deputy general counsel for intellectual property and licensing.

Microsoft on Monday launched a patent infringement lawsuit against Barnes & Noble, FoxConn International Holdings and Inventec Corp. over several features in the Android-based Nook e-reader and the Nook Color Tablet products.

“HTC, a market leader in Android smart phones, has taken a license under [our] program,” said Horacio Gutierrez, Microsoft’s deputy general counsel for intellectual property and licensing in a statement to the press. “We have tried for over a year to reach licensing agreements with Barnes & Noble, Foxconn and Inventec.

“Their refusals to take licenses leave us no choice but to bring legal action to defend our innovations and fulfill our responsibility to our customers, partners, and shareholders to safeguard the billions of dollars we invest each year to bring great software products and services to market.”

The suits were filed in federal district court for the Western District of Washington, and at the International Trade Commission, a court that considers patent infringement litigation against foreign companies importing products.

The patent infringement lawsuit is notable both because it’s the latest in a melee of other patent infringement lawsuits that have developed in the past year in the mobile device space as each of the big entrants seek to establish their primacy and market-leading position in an exploding market, and because Microsoft has spent the past few years fighting off infringement lawsuits itself. It has said that it has been the target of much frivolous patent infringement litigation.

One of the lawsuits it is currently involved in, Microsoft v. i4i, is currently being considered by the Supreme Court.

The case concerns a software consulting firm in Toronto, Canada, that holds a patent on a program that allows for custom editing of XML, a computer markup language.

The software firm sued Microsoft for patent infringement in 2007, and a jury ultimately found Microsoft liable for willful infringement. The consulting company, i4i and its partners were awarded nearly $300 million in damages in 2009.

Microsoft has appealed that decision, arguing that the patent is invalid. It lost on appeal and has appealed the case to the high court.

The patents at issue in the case against Barnes & Noble, FoxConn and Inventec cover five different functionalities as described by Microsoft in its blog. The features variously cover navigation, display, downloading, text-selecting and annotating functions.

In explaining the company’s decision to sue Barnes & Noble and company, Microsoft’s Gutierrez noted that “Microsoft is not a company that pursues litigation lightly.”

“In fact, this is only our seventh proactive patent infringement suit in our 36-year history,” he wrote on the Microsoft blog.

Gutierrez had another interesting statistic to share on the blog.

“Together with the patents already asserted in the course of our litigation against Motorola, today’s actions bring to 25 the total number of Microsoft patents in litigation for infringement by Android smartphones, tablets and other devices,” he noted.

Patent Reform Bill Flies Through Senate Judiciary Despite Tech Community Split

in Intellectual Property/Patents by

WASHINGTON, February 4, 2011 — The Senate Judiciary Committee on Thursday unanimously approved a patent reform package despite a sharp division of opinion about it among the biggest names in the technology industry.

The Thursday vote is the third attempt over a period of six years by the senate to tackle the complex issue of updating U.S. patent law as many in the technology community complain about a system that they see as broken.

One item in the package would give judges more discretion in determining damages in patent infringement cases, another would change the nation’s system of awarding patents to inventors who file for a patent first, rather than to the first person to invent something.

The committee has said that the package is based on ideas first floated in the original bill introduced in the 109th Congress by then House Judiciary Committee Chairman Lamar Smith, R-Texas and Congressman Howard Berman, D-Calif.

The fundamentally different attributes and dynamics between the computing and biotechnology industries and other segments of the economy are the elements of what have prevented consensus on the legislation and kept it in limbo for the six years.

But the package approved Thursday is narrower than the original legislation and enjoys support from groups that had previously opposed the passage of the original legislation.

The Biotechnology Industry Organization, the National Association of Manufacturers, National Venture Capital Association, an the Association of American Universities are among those who support passage of the legislation in its current form.

“The Patent Reform Act of 2011 would improve the patent system in ways that would benefit all sectors of the U.S. economy by enhancing patent quality and the efficiency, objectivity, predictability, and transparency of the patent system,” said BIO CEO Jim Greenwood in a press statement.

“BIO urges the full Senate to promptly consider and pass the bill, and will work with the Chairman and Ranking Member Grassley as well as members of the House and Senate as this legislation advances to ensure that the final bill preserves the incentives necessary to sustain America’s global innovation and spurs the creation of high-wage, high-value jobs in our nation’s innovation economy.”

Both IBM and Microsoft both support the legislation in its current form.

“This is the time for Congress to leave behind the handful of controversial issues that have made patent reform impossible so far (many of which already have been, or are in the process of being addressed by the courts), and focus on the core set of reforms that enjoy wide support and are vital to the ongoing health of the patent system,” wrote Brad Smith, Microsoft’s general counsel, and Deputy General Counsel Horacio Gutierrez in an extended blog post Wednesday.

But a group representing 14 technology companies that include some of the biggest names in Silicon Valley — such as Apple, Google, Cisco, Intel and Symantec issued a statement Thursday saying that the senate judiciary bill still needs a lot of work.

“The Coalition for Patent Fairness believes that the bill in its current form has significant problems and we look forward to working with Congress to improve it,” it said.

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