Microsoft may have scored an early victory in its legal tussle with Barnes & Noble. The two companies are engaged in parallel battles, one via the Department of Justice, another via United States International Trade Commission. In March 2011, Microsoft accused Barnes & Noble of patent infringement with its NOOK and NOOK Color products; in retaliation, Barnes & Noble made a broad complaint claiming that Microsoft is being an abusive monopoly and that the patents are in any case irrelevant. That antitrust complaint looks likely to be rejected by the ITC, a decision that favors Microsoft.

The document dismissing the antitrust complaint is under seal; however, its title, "Initial Determination Granting Microsoft's Motion for Summary Determination of Respondents' First Affirmative Defense of Patent Misuse," is public, with intellectual property analyst Florian Mueller certain that this means rejection of the claim. Mueller has been commissioned by Microsoft to conduct a study on the worldwide use of FRAND patents.

Microsoft has welcomed the ITC's decision. "Today's action by the ITC makes clear that Barnes & Noble's patent misuse defense was meritless," said deputy general counsel David Howard. Redmond remains open to offering licenses to the bookseller, adding it to the growing list of Android-using companies that pay a fee to Microsoft, with Howard adding, "We remain as open as ever to extending a license to Barnes & Noble, and invite them to join the many other major device makers in paying for the Microsoft-developed intellectual property they use in their devices."

Barnes & Noble's antitrust complaint was made as an affirmative defense against Microsoft's action. Dismissal of this defense has looked likely since June, when ITC staff pointed out that patent law in general creates no obligation to offer licenses or make those licenses freely available. The Department of Justice may arrive at a different conclusion to the ITC.

The ITC action is still on-going, and with the antitrust defense dismissed will focus on the validity and applicability of the patents in question. Earlier this month, Microsoft removed one patent from the suit entirely, and also dropped several of the claims relating to the four remaining patents. In dropping the claims, Microsoft stipulated that the action was "not an admission as to the merits of any claim," but rather was meant to "simplify the Investigation, streamline the hearing, and converse the Parties' and Commission's resources in consideration of the amount of time allotted for the hearing."

The ITC trial will start on Monday, February 6th.