Can the Feds Save Barnes & Noble?

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.

Fool contributor Evan Niu holds no position in any company mentioned. Check out his holdings and a short bio. The Motley Fool owns shares of Google and Microsoft. Motley Fool newsletter services have recommended buying shares of Google and Microsoft and creating a bull call spread position in Microsoft. Try any of our Foolish newsletter services free for 30 days. We Fools don't all hold the same opinions, but we all believe that considering a diverse range of insights makes us better investors. The Motley Fool has a disclosure policy.


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  • Report this Comment On November 09, 2011, at 9:23 PM, cap69 wrote:

    And didn't a late Apple co-founder - a certain Steve Jobs - call Android a "stolen product" and promised a thermonuclear war/annihilation of Android or some such thing?

    I mean, you have to be a ding dong of particularly dull variety to ignore all these facts and reduce the whole narrative to a Microsoft Bully theme, don't you?

    What makes Android the most galling and blatant example of corporate heist and thuggery is that these Google chimps were not simply satisfied at ripping of the internals from Java. They went ahead and basically xeroxed the whole iPhone/iPad UI too. What are Android phones if not a straight copy of iPhone? I mean, Google's slogan has got to be be "No IP thievery left behind."

    Let's not forget that eBay/Paypal are after Google too for stealing their ePayment IPs.

  • Report this Comment On November 09, 2011, at 9:28 PM, cap69 wrote:

    " And what Oracle is demanded for that minor transgression would pale in comparison to what Microsoft is getting out of demanding payment for the use of its IP."

    Oops, I meant: And what Oracle is demanding for that minor transgression outsizes significantly whatever Microsoft is getting out of payment for the use of its IP.

  • Report this Comment On January 09, 2012, at 6:47 PM, Mega wrote:

    "B&N declined to disclose exactly how much Microsoft was asking for, but it did say the company couldn't afford it."

    It's not Microsoft's fault that Barnes & Noble is broke!

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