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Old 11-03-2009, 07:37 AM   #1
dmikov
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Spring Design sues Barnes & Noble over the Nook

http://www.engadget.com/2009/11/02/s...over-the-nook/

Called it first Their ploy was so transparent.

http://www.mobileread.com/forums/showthread.php?t=59761

What a horrible horrible business practices. They don't even have a leg to stand on, just hoping for a settlement.

Last edited by dmikov; 11-03-2009 at 07:41 AM. Reason: Added link to first thread.
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Old 11-03-2009, 10:46 AM   #2
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A very common "business" practice. Michele Boldrin and David K. Levine describe this and other dirty tricks in their book "Against Intellectual Monopoly", see http://www.dklevine.com/general/inte...al/against.htm
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Old 11-03-2009, 11:39 AM   #3
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A very common "business" practice. Michele Boldrin and David K. Levine describe this and other dirty tricks in their book "Against Intellectual Monopoly", see http://www.dklevine.com/general/inte...al/against.htm
Meh

At the risk of starting yet another IP-law flamefest and while I do not support some aspects of copyright and patent law, I'm pretty much convinced that the ultimate issue is not that "IP restrictions are evil." Even if IP did not develop into its current form, governments and corporations would just have found some other means to manage/monopolize/control/protect/monetize/commodify/whatever the materials in question.

And since patent law is unlikely to up and die any time soon, it seems to me the primary issues are 1) lack of funds for the patent office to thoroughly and properly check patents prior to awarding them, which 2) leaves it for the courts, which 3) could definitely use some tort reform.

As a result, if this is a frivolous suit and Spring Design has no real intentions to manufacture and market an ebook reader, then they don't have much to lose. But at a minimum this does not sound like a case where Spring bought a bunch of patents and is bashing the lanscape with subpoenas (*cough* SCO *cough*) -- it sounds more like Spring and B&N had some discussions, perhaps there were some misunderstandings, perhaps B&N said one thing and did another. Maybe it's baseless, but maybe it isn't. It's impossible to say at this point in time.

Also, afaik launching a website has nothing to do whatsoever with filing patents, NDA's or trade secrets, other than possible PR moves. The merits of the lawsuit (if there are any) will depend on whatever Spring can dig up about their talks with B&N, not who launched a website first.
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Old 11-03-2009, 11:58 AM   #4
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As noted, IP law is a mess. I didn't see anything, really, in the article that says what SD is suing over, except possibly violating the NDA. Not that I think there isn't anything else, it just isn't made clear. Are they suing for patent infringment? Copyright violation? Theft of trade secrets? (I don't think you can sue for that, unless actual theft is involved. More likely that suit would be for violation of the NDA.)

A major problem is the PTO allowing 'too-broad' patents. As the article noted, the two devices work quite differently, but it's possible that SD patented the idea of having two screens in a single device. That would suck-but similar 'we own all variations' patents have been granted before. Personally, I think patents should be limited to specific devices, not to ideas. But that's not how the law reads (at least US law).
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Old 11-03-2009, 12:17 PM   #5
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Perhaps this explains why B&N won't discount the nook for its club members -- it needs the money to defend against this lawsuit!
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Old 11-03-2009, 12:28 PM   #6
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And since patent law is unlikely to up and die any time soon, it seems to me the primary issues are 1) lack of funds for the patent office to thoroughly and properly check patents prior to awarding them,
Just a minor nit and pick. Patent law and ridiculous patents are somewhat of a hobby of mine. As such I have to say this is a rather bogus excuse in this day and age. Granted, not every answer can be found online but a quick tutorial on how to use google and archive.org could save millions of dollars wasted in lawsuits every year. Case in point, the recent ruling by the patent office against Nestle. ( http://www.wysong.net/wysong-vs-purina.php ). In short Wysong was making money selling bacteria augmented Animal/People food. Nestle then years later sees this segment growing and patents it but never actually makes the product. Then sues Wysong for licensing.

Granted in 1999 the USPTO may have had to use AltaVista instead of Google, but they still likely could have likely found something as this page from archive.org shows http://web.archive.org/web/199812061...ww.wysong.net/

Too often we say oh, that's just too hard and give people an out. Its time to start making them do the job they are paid for.
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Old 11-03-2009, 12:55 PM   #7
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I won't claim to agree with the viewpoint I'm going to explain, but it's a viewpoint typical of many government segments (US government, at least).

Basically, it's not up to the government to proactively protect rights. What the government does is provide a mechanism by which people can protect their rights themselves. In this viewpoint, the PTO doesn't search for prior technology before granting a patent. According to law, Nestle should have searched for & disclosed the prior technology, explaining in their patent application how their technology differed from the prior technology enough that it wasn't infringing. Needless to say, nobody (or at least very few applicants) actually do this.

So the actual effect is that PTO will grant the patent then, when the previous user of the technology files suit (or the patent holder files suit against the previous user of the technology) the competing claims are examined & the loser's patent is invalidated. But the whole viewpoint depends on the user defending their rights. Until somebody files suit, both patents are valid. (Very strange, but as I said before this isn't something I agree with.)

This is, IMO, a practical solution for a problem that was essentially insurmountable in the past. The fact that it's still applied, even when modern technology allows for a better solution, is mostly bureaucratic inertia. (And the part that isn't inertia is probably that this viewpoint is applied in areas where modern technology doesn't have a better solution. For instance, this same viewpoint is why a person needs to break the law before they can ask a judge to rule on whether or not the law is valid. (Criminal law, of course-similar policies apply to civil law but they're harder to describe.) If a person isn't affected by a law (i.e. not subject to punishment for having broken it) then they don't have the legal 'standing' to challenge the law.
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Old 11-03-2009, 02:15 PM   #8
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The "prior art" thing is a funny business. It is impossible to be exhaustive in your search. You may not happen to use the correct terms for a similar feature or item.

But when we submit patent applications our resulting patent is stronger if we include as much prior art as possible and explain why ours is different. Sometimes we miss prior art that a patent examiner spots and points out. Then there is a dialog where we try to convince the examiner why that art does not apply.

All of this is semi-public information but you have to actually read the patent 'wrapper' to see all the give-and-take. You only see a list of referenced patents on the title page of the final patent, none of the arguments that flew back and forth before granting it.

At the end of the day the result is still not perfect. We sometimes go to another company and claim patent infringement and they end up finding a prior art that NOBODY else found. Heh, usually vice-versa (I do more defending than attacking).
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Old 11-03-2009, 02:31 PM   #9
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Originally Posted by calvin-c View Post
As noted, IP law is a mess. I didn't see anything, really, in the article that says what SD is suing over, except possibly violating the NDA.
Assuming the article is right (which is always a bit of a dodgy assumption), it's a trade secrets lawsuit. Supposedly they shared their design under an NDA, and are now claiming that B&N stole the design.

Based on the information in the article, it doesn't have anything to do with patents.
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Old 11-03-2009, 03:46 PM   #10
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Assuming the article is right (which is always a bit of a dodgy assumption), it's a trade secrets lawsuit. Supposedly they shared their design under an NDA, and are now claiming that B&N stole the design.

Based on the information in the article, it doesn't have anything to do with patents.
I'm pretty sure you can't patent and idea... you can only patent the implementation of an idea. So, I'm pretty sure this will go no where.

BOb

BTW: I am not a patent attorney. (thank god for that).
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Old 11-03-2009, 04:30 PM   #11
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Some businesses are built around this technique aren't they.. get some incredibly broad patent and wait for another company to infringe. Microsoft recently had to stop selling MS Office because of some XML format patent - something even less tanglible than a hardware device. The company that sued them got some kind of massive payout I believe.

The nook looks about 5 times better than that other device though, that's for sure!

In the case of hardware the company has to demonstrate they have made the device and intend to sell it I believe. It's strange though, a lot of these patents aren't acknowledged in court, for example Apple has patented every incarnation of 'multitouch' - using multiple fingers to control touch screen devices, but Microsoft and other companies like Palm are still making multitouch devices and software, no huge legal battle eventuated.
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Old 11-03-2009, 04:52 PM   #12
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for example Apple has patented every incarnation of 'multitouch' - using multiple fingers to control touch screen devices, but Microsoft and other companies like Palm are still making multitouch devices and software, no huge legal battle eventuated.
The multi-touch patent by Apple isn't valid. There was plenty of prior art and implementations of it already.

BOb
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Old 11-03-2009, 04:52 PM   #13
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Assuming the article is right (which is always a bit of a dodgy assumption), it's a trade secrets lawsuit. Supposedly they shared their design under an NDA, and are now claiming that B&N stole the design.

Based on the information in the article, it doesn't have anything to do with patents.
I think Shaggy is spot on, and I'm guessing B&N may be in some trouble here.

Last edited by Daithi; 11-04-2009 at 09:05 AM. Reason: grammar sucks
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Old 11-03-2009, 04:58 PM   #14
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I'm pretty sure you can't patent and idea... you can only patent the implementation of an idea. So, I'm pretty sure this will go no where.
They're not suing based on a patent though. I don't know if Spring Design even has a patent, it isn't mentioned in the article and doesn't seem to be relevant (unless there is more going on under the covers).
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Old 11-03-2009, 06:03 PM   #15
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Sometimes we miss prior art that a patent examiner spots and points out. Then there is a dialog where we try to convince the examiner why that art does not apply.
Penforhire, do you ever amend or revise your patent application based on these discussions with the patent examiner? Or would such a rewrite be viewed as word-play attempt to legitimize the invention?
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