Okay, e-reader mavens, it’s time to play Name That Device. Here’s a description of a popular one:

A handheld electronic device comprising: a housing; an electronic paper display disposed in the housing and having a first surface area; and a liquid crystal display (LCD) disposed in the housing proximate the electronic paper display, the LCD having a second surface area that is smaller than the first surface area of the electronic paper display.

Sounds like Barnes & Noble’s Nook, right?

Wrong. It’s a description of a patent applied for by Amazon in 2006, a patent that Amazon never published – until now. And the United States Patent and Trademark Office has just granted the patent to Amazon!

Nilay Patel writing in Engadget calls the revelation “Juicy.”  It could be a lot more than that if Amazon decides to file an infringement claim against B&N.

Patel reminds us that “Barnes & Noble is already involved in a trade secret dispute over the Nook with Spring Design, which claims that B&N saw its Alex reader under NDA [Non-Disclosure Agreement] and then copied it for the Nook.” That case is still pending. (See Who is Alex and Why Is He Suing the Nook People?)

B&N’s patent attorneys are going to have their hands full in the coming months.

Richard Curtis

Spring Design’s lawsuit against Barnes & Noble for misappropriating its Alex e-book reader caught us doubly flatfooted. On the one foot, we were shocked to learn that colossus B&N might have released its Nook without clearing its business relationship with a firm it had allegedly been consulting. On the other foot, we’d never heard of the Alex, and believe me we’ve been covering the field for years. In the words of a blogger for tech website Gizmodo, “When the Alex was released in October,`I thought that Spring Design was the copycat, but based on the lawsuit they filed for violation of intellectual property, it may be the other way around.” Here are Alex (l.) and Nook (r.) side by side.

Every year lawsuits are filed by opportunistic companies alleging that their original invention – “A means of cooking food by application of a flame” – has been stolen by someone who fried onions on a stove. Most such suits are without merit. Spring Design’s suit, on the surface, appears to have some respectable merits. The firm is not fly-by-night, having been founded in 2006. Its Duet Navigator™ dual screen design is trademarked and a patent is pending. According to the writeup reprinted in Gizmodo, Spring Design “has been working with major book stores, newspapers and publishers over the last two years, sharing the vision and the capabilities of the dual screen device.”

Below is a video demo of Alex and on it certainly looks pretty Nookish from where we sit. More importantly, it might look Nookish to those sitting on a jury one day. The dual screens (b&w e-book reader on top, full color nav bar below) are similar and they both utilize the Android operating system. But let’s give B&N every benefit of the doubt and say it was a coincidence – an example of two independent firms racing to get their product on stream first. That leaves only one question to be settled: The NDA.

“NDA” stands for “Non-Disclosure Agreement”, a common practice used in business to protect a firm sharing trade secrets with another firm interested in establishing a business relationship. According to Barb Dybwad of Mashable.com, “Spring Design had apparently been working with Barnes & Noble since the beginning of this year under a non-disclosure agreement, with the original intent of collaborating on the device. Barnes & Noble executives reportedly praised the innovative features of the device without mentioning their plans to incorporate similar functionality into the Nook device they publicly disclosed last month.” The lawsuit will probably hinge on whether B&N violated Spring Design’s NDA.

A smoking NDA would certainly be compelling support for Spring Design’s claim but not necessarily decisive. How do we know for instance that Spring didn’t have NDAs with a hundred other firms, some of which breached the covenant and shared Spring’s corporate secrets with B&N?

We’ll be following this case raptly. Meanwhile, amusingly – no, hilariously – when you click on the Inside PR’s article about the Nook lawsuit you’ll see an ad for…Kindle! Proving that not everybody loses in a lawsuit.

Richard Curtis