Spring Design sues Barnes & Noble over the Nook

[dmikov]

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.

[Pablo]

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

[Kali Yuga]

Originally Posted by Pablo

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.

[rahlquist]

Originally Posted by Kali Yuga

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.

[calvin-c]

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).

[Shaggy]

Originally Posted by calvin-c

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.

[pilotbob]

Originally Posted by Shaggy

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).

[Shaggy]

Originally Posted by pilotbob

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).

[pilotbob]

Originally Posted by Shaggy

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).

Same exact thing happened to Gene Roddenberry. He pitched the Star Trek idea to CBS first. They picked his brains for several hours about how he could make something on such a small budget. He answered all their questions and they said no thanks and goodbye. They then came out with Lost In Space using many of the filming and set aspect that Roddenberry had told them he was going to use for Trek.

Roddenbury didn't sue them... he couldn't have. He just went on to product a World Wide phenomenon that has spanned 5 TV series and 10 movies.

BOb

[fjtorres]

Originally Posted by pilotbob

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).

Agreed.
Cause you got it backwards: patents *are* for ideas.
It is *copyright* that only covers implementation.

And, while the press has made no mention of it, the Alex announcement claims their dual-screen design is under patent. The patent may or not be finalized but it factors into the IP discussion. (And yes, it *is* possible to innocently infringe on a patent. You're still liable. Infringing *after* being informed leads to big awards *if* proven.)

However, claims under an NDA fall under *contract* law and those can get nasty (ask Microsoft over the fine print SUN slipped in on them when they licensed Java).

Finally, note that SD is *not* a troll operation, okay?
They are a small startup with a working product that they showed to B&N under NDA and then found B&A shipping a conceptually identical product.

Not my job to settle the argument here and now (we haven't heard B&N's side) but there is precedent for this situation:
http://www.washingtonpost.com/wp-dyn...2005Feb25.html
(Search Wikipedia for Robert Kearns for more detailss and links.)
Basically Mr Kearns invented intermitent wipers and got a patent, showed them to the automakers, who refused to license his idea but implemented it their own way afterwards. Took decades but he eventually won. And that was without the internet and mass media to support his case or even a lawyer.

There is meat to this case; it might be paper thin or it might be a mile wide, that is for the courts to decide. But don't assume that cause Nook is cute and white and Alex is black and unwieldy there is no case here; they are *not* suing under trade dress. And they're *not* suing under copyright. So whatever our opinions about copyright, patents and what-not, they are not at issue.

They are suing under an NDA and that is a contract; in contracts there are two sides. How about giving both sides a bit of respect here?

The first test of how strong a case SD has is coming up quick: they asked for an injunction to keep Nook off the market. Let's see what the judge says, huh?

[Daithi]

Originally Posted by fjtorres

Agreed.
Cause you got it backwards: patents *are* for ideas.
It is *copyright* that only covers implementation.

No, BOb had it right. Patents are for devices and NOT for ideas.
Copyright applies to written material.

[Daithi]

Originally Posted by Shaggy

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.

[rhadin]

Perhaps this explains why B&N won't discount the nook for its club members -- it needs the money to defend against this lawsuit!

[calvin-c]

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.

[Penforhire]

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).