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Do you remember when your older brother or sister used to pick on you to the point of tears, and the only response you had left was to run to your parents and plead for assistance? Or the school bully who would shake you down for your lunch money, even after you had already spent it in the cafeteria and had nothing left to give, hoping a teacher would come to your rescue?
Well, in this case, Microsoft (Nasdaq: MSFT ) is the big, mean bully, Barnes & Noble (NYSE: BKS ) is the helpless victim, and the U.S. Department of Justice is the authority figure in the room. Microsoft has been going to town with all the dough it's raking in from Google (Nasdaq: GOOG ) Android-related patent licensing agreements, with its current tally up to 10, including major Android players HTC and Samsung.
B&N hasn't caved and has been duking it out in litigation with the Redmond giant, as has Motorola Mobility (NYSE: MMI ) . The bookseller's Nook Color and recently announced Nook Tablet both run Android, giving Microsoft the chance to strike. Barnes & Noble is now looking for divine intervention in the form of an antitrust probe of the attack.
The company alleges that the suits are part of a broader strategy to monopolize the mobile operating-system market by demanding royalties. It contends that the goal is to drive up costs for rivals of Windows Phone, thereby creating a barrier to entry and hindering competition.
Microsoft's response? "We would be pleased to extend a license to Barnes & Noble." Of course you would, Mr. Softy. Of course you would.
B&N declined to disclose exactly how much Microsoft was asking for, but it did say the company couldn't afford it. B&N's general counsel, Eugene DeFelice, had said that the "exorbitant licenses for [Microsoft's] patents entrench the dominant players in the relevant markets because those players can afford to take a license, while small players cannot," in a letter to the DoJ.
The bookseller has some valid points on Microsoft's recent patent strategy, although I don't think the antitrust and monopoly arguments hold up very well. It's a hard sell to say Microsoft is about to monopolize the mobile OS market while its market shar e is a measly 5.6%, according to recent figures from comScore (Nasdaq: SCOR ) , and demanding a nominal fee per device sold is a far cry from a monopoly.
Although those fees add up to a sizable chunk of change, it's nothing like the near-monopoly Microsoft did have in the '90s. Best of luck to B&N as it seeks a white knight, but with the momentum Microsoft has built in the patent courts, it might just be cheaper to give in, instead of fighting and then having the courts side with Mr. Softy anyway.