Legal

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 infringement litigation."

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 polyurethane foam.

(Reporting by Alison Frankel)

(Adds no comment from Cravath)