There's finally been a growing recognition that intellectual property laws are about providing monopolies, and that misusing patent and copyright laws thus could be considered antitrust violations. While it's true that copyright and patents involve legal
monopolies, misusing them would clearly be an abuse of a monopoly, and should be ripe for actual antitrust investigations (rather than silly antitrust attacks on companies just because they're "big.") So it's interesting to see that Barnes & Noble is pressing the feds to go after Microsoft on antitrust grounds
for its Android licensing shakedown
. Barnes & Noble is pretty direct in its accusations.
Instead of focusing on innovation and the development of new products for consumers, Microsoft has decided to invest its efforts into driving open source developers from the mobile operation systems market. Through the use of offensive licensing agreements and the demand for unreasonable licensing fees, Microsoft is hindering creativity in the mobile operation systems market.
The complaint also notes some odd behaviors on Microsoft's part, such as refusing to explain what patents it was threatening B&N over, unless B&N agreed to sign a non-disclosure agreement.
Microsoft specifically alleged that Barnes & Noble's Nook was infringing six patents purportedly held by Microsoft. When Barnes & Noble asked Microsoft for more detailed information related to these patents, Microsoft refused, claiming that the information was confidential and could not be shared unless Barnes & Noble first executed a non-disclosure agreement ("NDA"). Because both the patents and Barnes & Noble's Nook product are public -- meaning there was no need for an NDA -- Barnes & Noble refused to sign.
The company continued negotiating with Microsoft over what seemed like a pretty bizarre discussion concerning whether B&N had to sign an NDA just to find out what patents Microsoft wanted the company to license. Because B&N did eventually sign a limited NDA, it's asking the DOJ to step in and subpoena the details it can't reveal. Still, B&N claims that Microsoft's patents would severely limit its ability to innovate:
This proposed licensing agreement covered Barnes & Noble's use of Android on its existing eReader devices but is structured in such a way to presume that Microsoft's portfolio of patents dominate, and thereby control, the entire Android operation system and any devices that use Android. Indeed, the proposed license would have severely limited and, in some cases, entirely eliminated Barnes & Noble's ability to upgrade or improve the Nook or the Nook Color, even though Microsoft's asserted patents have nothing to do with improvements.
Unfortunately, I just don't see the Justice Department gearing up for this, but that's really unfortunate. It should
be watching out for abuses of patent law that appear to impact wider innovation. Instead, it's running around chasing companies based on size, not actual impact.