Having weaned itself from its antitrust-angst assertion shyness of years past, Microsoft has entered the drunken brawl phase of its patent adolescence. Or so Barnes & Noble might ascribe, had it pretension to literary aspiration, rather than contenting itself as a bookseller. A bookseller affronted by Microsoft for patent infringement, for selling its wee Nook™ e-book, which has employed an OS called Android™.

In its response to Microsoft's assertion, Barnes & Noble barfs boilerplate, but also bubbles bluster that may just pass muster.

Microsoft is misusing these patents as part of a scheme to try to eliminate or marginalize the competition to its own Windows Phone 7 mobile device operating system posed by the open source Android™ operating system and other open source operating systems. Microsoft's conduct directly harms both competition for and consumers of eReaders, smartphones, tablet computers and other mobile electronic devices, and renders Microsoft's patents unenforceable.

As part of this scheme, Microsoft has asserted patents that extend only to arbitrary, outmoded, or non-essential 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. The asserted patents do not have a lawful scope sufficient to control the Android™ Operating System as Microsoft is attempting to do.

Microsoft did not invent, research, develop, or make available to the public mobile devices employing the Android™ Operating System and other open source operating systems, but nevertheless seeks to dominate something it did not invent. On information and belief, Microsoft intends to take and has taken definite steps towards making competing operating systems such as the Android™ Operating System unusable and unattractive to both consumers and device manufacturers through exorbitant license fees and absurd licensing restrictions that bear no relation to the scope and subject matter of its own patents.

Microsoft and its agents, including spokesman and chief executive officer Mr. Steven Ballmer, have publicly stated that through its patents Microsoft can dominate, control, and exclude from the market the Android™ Operating System, other open source operating systems, and open source applications such as Google Chrome. These statements are unjustified in view of the scope of Microsoft's patents. Moreover, neither Microsoft nor Mr. Ballmer has ever identified to the American public the basis for these grand assertions of dominance.

Barnes & Noble describes a pre-litigation meeting with Microsoft about the Nook™ infringing Microsoft patents.

Microsoft had prepared claim charts purportedly detailing the alleged infringement but insisted that it would only share the detailed claim charts if Barnes & Noble agreed to sign a non-disclosure agreement ("NDA") that would cover the claim charts as well as all other aspects of the parties' discussions. Noting that the patents were public and that the infringement allegations pertained to Barnes & Noble's public product, Barnes & Noble refused to sign an NDA. Insisting that an NDA was necessary, Microsoft discussed the alleged infringement on a high- level basis only. Microsoft nevertheless maintained that it possessed patents sufficient to dominate and entirely preclude the use of the Android™ Operating System by the Nook™. Microsoft demanded an exorbitant royalty (on a per device basis) for a license to its patent portfolio for the Nook™ device and at the end of the meeting Microsoft stated that it would demand an even higher per device royalty for any device that acted "more like a computer" as opposed to an eReader.

Microsoft hounded Barnes & Noble, who dimly neglected to file a declaratory judgment action to tilt the axis to its favor, despite Microsoft creating an actual controversy with its previous threats. Instead, a weak-kneed Barnes & Noble finally relented, agreeing to Microsoft's "hush-hush" infringement chart agreement.

At the meeting, after the Agreement was executed, Microsoft provided Barnes & Noble with the claim charts referenced in the Agreement, which related to five of the six patents Microsoft had originally identified.

Tellingly, although Microsoft had insisted on entering into an NDA covering these claim charts, the charts did not contain confidential information but instead did nothing more than set forth the published claims of certain Microsoft patents on the one hand and publicly known features purportedly employed by the open source Android™ Operating System and the Nook™ on the other hand.

The hot-and-bothered tone of Barnes & Noble's response, however merited, and irrelevant, aims at the ubiquitous litigator stratagem of biasing the trial court to its favor, in Microsoft's home court no less. Good luck with that.