Following Google, Microsoft tries to unring a bell

By Alison Frankel
November 17, 2011

The big guns are rolling out on both sides of Microsoft’s patent infringement suit against Barnes & Noble at the U.S. International Trade Commission. Microsoft has no fewer than four firms (Sidley Austin; Orrick, Herrington & Sutcliffe; Woodcock Washburn; and Adduci, Mastriani and Schaumberg) working on the six-month-old case, in which it accuses Barnes & Noble’s Nook e-readers of infringing Microsoft patents. Barnes & Noble this week supplemented its team of Cravath, Swaine & Moore and Kenyon & Kenyon with Paul Brinkman‘s group from Quinn Emanuel Urquhart & Sullivan. The Quinn addition is notable because Barnes & Noble’s devices use Google’s Android operating system; Quinn, which is one of Google’s go-to IP firms, previously defended the Android system in Apple’s ITC case against HTC.

When it comes to Android, Microsoft and Google don’t exactly think the same way, as you’ll see below. But there is one issue on which they have a peculiar alignment of interests: they’re both trying to put the kibosh on supposedly confidential information that’s jumped from litigation into the public domain.

Google, as you’ll no doubt recall, has been fighting for months to undo the damage an email written by one of its Android engineers has apparently caused to Google’s defense of Oracle’s Java infringement claims. (The engineer, Tim Lindholm, said all alternatives to Java “suck” and Google should license the software code.) Google has been arguing, without any success, that Oracle improperly introduced the damning email into the record and all traces of it should be purged — even though, by now, Lindholm’s email is plastered all over the Internet.

Microsoft, meanwhile, has been gleefully roasted this week by tech bloggers citing disclosures from the Barnes & Noble case. (See, for instance, here, here, and here.) The Microsoft-is-a-troll taunting began way back in April, when the brainy folks at Groklaw first covered Barnes & Noble’s answer and affirmative defenses to Microsoft’s ITC complaint. The book-selling giant, Groklaw pointed out, was asserting a patent misuse defense, claiming that Microsoft is on a mission to destroy Android by demanding exorbitant licensing fees for trivial patents.

Then last week, Bloomberg noticed that Barnes & Noble had filed some pretty juicy documents to support its assertions, including a March 2011 letter Barnes & Noble’s Cravath lawyers sent to the Justice Department’s antitrust division, urging DOJ to investigate Microsoft for antitrust violations in its anti-Android campaign. In an accompanying slideshow presentation to the DOJ, Barnes & Noble detailed Microsoft’s Android-related license deals and the nondisclosure agreements Microsoft supposedly forced licensees to sign. Groklaw uploaded all the documents — including Cravath’s letter to the DOJ and the slideshow — and the blogosphere took over. (Kinda funny that the March 2011 letter from Cravath is addressed to then-Antitrust Division chief Christine Varney, who is now, of course, a Cravath partner.)

You can find the Barnes & Noble filings with a few clicks, but you can’t find them in the record of the ITC case anymore. That’s because Microsoft complained to ITC Secretary James Holbein that the B&N document dump contained confidential information. (I can’t even link to Microsoft’s Nov. 2 and Nov. 4 letters; they were filed under seal.)

Barnes & Noble, which has made Microsoft’s secrecy a theme of its defense, responded with a fiery six-page letter on Nov. 4. “Prior to the institution of this investigation and ever since, Microsoft has claimed confidentiality where none existed,” B&N’s lawyers at Kenyon & Kenyon wrote. “Over the course of license negotiations with Microsoft, Barnes & Noble repeatedly told Microsoft that it did not consider its negotiations to be confidential; Microsoft’s unilateral insistence on the confidentiality of documents given to Barnes & Noble over the course of negotiations does not create a confidentiality agreement.” (I highly recommend reading the letter, which details exactly how Microsoft attempted to extract a nondisclosure agreement from Barnes & Noble in a series of licensing meetings.)

Barnes & Noble said in the Nov. 4 letter that it would move to have the documents reclassified as not confidential, but the ITC docket doesn’t indicate it’s made a motion yet.

I left a message for Barnes & Noble counsel Peter Barbur of Cravath (who signed the DOJ letter) but didn’t hear back. Paul Brinkman of Quinn declined comment. Microsoft counsel Robert Rosenfeld of Orrick referred my call to a Microsoft spokesperson, who declined comment.

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