How seriously is Barnes & Noble taking Microsoft's
accusation that the Nook e-reader infringes Microsoft patents?
I told you last month that B&N had added Quinn Emanuel Urquhart & Sullivan to its team at the U.S. International Trade
Commission, supplementing Kenyon & Kenyon and Cravath, Swaine &
Moore. Last week the bookseller ramped up again: As FOSS Patents and the Am Law Litigation Daily have reported, David
Boies of Boies, Schiller & Flexner entered an appearance for
Barnes & Noble at the ITC.
That's an awful lot of lawyers. No one's talking about
exactly what they're all going to be doing; Boies Schiller,
Quinn and Cravath all declined comment. But based on public
records, I have a pretty good idea of who's going to be
handling various pieces of the litigation.
It's important to remember that Barnes & Noble doesn't
consider this dispute to be simply a patent case. The
bookseller giant is out to disrupt a Microsoft licensing
program that has brought the software behemoth untold millions
from Android operating system users who've signed secret
agreements in order to head off Microsoft infringement suits.
In a Seattle federal district court suit that parallels the ITC
case (but has been stayed), Barnes & Noble has asserted an
affirmative defense of patent misuse, claiming that Microsoft
"has [not only] asserted patents that extend only to arbitrary,
outmoded, or nonessential design features, but uses these
patents to demand that every manufacturer of an Android-based
mobile device take a license from Microsoft and pay exorbitant
licensing fees or face protracted and expensive patent
That's antitrust talk, and, indeed, Barnes & Noble's
Cravath lawyers have tried to interest the Justice Department in Microsoft's alleged anti-competitive behavior. David Boies
is no patent lawyer -- but he's one of the best-known antitrust
lawyers around, thanks in no small part to his work as special trial counsel to the Justice Department in its case against,
you guessed it, Microsoft. Look for Boies to work with his
former Cravath partners on the patent misuse and antitrust
aspects of the Barnes & Noble affirmative defense.
Quinn Emanuel, on the other hand, is likely to focus on
patent case at the ITC, along with Cravath and Kenyon & Kenyon.
One of the Quinn partners working for Barnes & Noble, Paul
Brinkman, is an ITC specialist who moved from Alston & Bird in
September; he's known for defending Nokia in the Apple ITC
smartphone case that preceded the global megadeal between the
companies. Quinn Emanuel's IP representation of Barnes & Noble
also predates the Microsoft litigation. John Quinn and David
Eiseman are handling a B&N declaratory judgment suit against
two patent holders. That case, filed in San Francisco federal
court in June, has already survived a motion to dismiss.
There are a couple interesting wrinkles in the addition of
Boies and Quinn (another Cravath alum) to Barnes & Noble's
roster. Before Quinn Emanuel joined the defense team, Barnes &
Noble subpoenaed Android creator Google. The ITC docket now
features one set of Quinn Emanuel lawyers representing Google
as a third party and another set representing Barnes & Noble.
The case is also an extension of the relationship between Quinn
Emanuel and Boies Schiller. Earlier this year, the firms were
named co-lead counsel in a multi-district antitrust class action against 11 defendants that allegedly fixed the prices of
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
Follow us on Twitter: @ReutersLegal
(Adds no comment from Cravath)