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02.26.09

SFLC: Step Back and Re-think How Friendly Microsoft is to Free/Open Source Software (Updated)

Posted in Europe, Free/Libre Software, Law, Microsoft, Patents, SCO, TomTom at 8:04 am by Dr. Roy Schestowitz

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

Bill Gates

IN LIGHT OF the latest assault on TomTom (and Linux), Bradley Kuhn, who a few weeks ago commented on Microsoft’s "open source" posturing in [1, 2], has made the following statement:

Bradley Kuhn, Software Freedom Law Center policy analyst, told The Reg Wednesday evening: “It’s a good moment for people to take a step back and re-think how friendly Microsoft is to open source.”

This comes amid Microsoft’s attempt to pull an embargo against TomTom, having alleged that it had violated patents by using Linux and not paying Microsoft for the ‘right’. They want to essentially use financial strangulation against those who received no ‘permission’ from Microsoft to distribute Linux.

Gutierrez has a somewhat troubling view on patents, where he believes that all tech companies should effectively be paying pretty much everyone else patent licensing fees before they can build any products. Rather than seeing that as a problem — he thinks it represents a good thing. It’s difficult to see what the benefit is in all that wasted money changing hands… other than it’s probably what pays his salary. Not surprisingly, Microsoft is using the infamous ITC loophole to get two shots at forcing TomTom to pay up — meaning that it’s both sued the company in court, and gone to the ITC to have it try to block the import of TomTom products.

This is not the first time that Microsoft exploits such a legal maneuver. It’s truly an ugly routine.

It is not the first offensive lawsuit using patents from Microsoft but probably the first that explicitly involves Linux. Prior to that there was the Primax case [1, 2, 3, 4], which was all to do with computer mice. The Register has just pointed this out as well.

In the most recent case, Microsoft settled with Taiwanese mouse-maker Primax after accusing it of violating its tilt-wheel technologies.

One is able to gain insight into what was happening behind the scenes prior to this legal action. The first stage makes one wonder if companies like Brother were pressured into a patent deal with Microsoft. According to IDG:

Microsoft engaged in discussions with TomTom to license the technologies, but an agreement could not be reached, said Horacio Gutierrez, corporate vice president and deputy general counsel at Microsoft.

Here is why it’s important to have TomTom fight this battle and never settle.

Asked if this TomTom case is the start of a broader legal campaign over those alleged violations, Gutierrez said no.

It would set a bad precedence had TomTom decided to settle, which is what Sam Varghese imagines they will strive for.

TomTom is a Dutch company with a much bigger presence in Europe than in North America. It has a presence in Asia, Africa and Australia as well and sells its products in 30 countries and in 20 languages. It is a market leader in portable navigation devices.

However, people should not get overly excited and have visions of a trial like the SCO case; it is likely that TomTom was calling Microsoft’s bluff all this time and may now settle.

“Microsoft products need to be banned in the EU,” said one reader, but patents might be needed to achieve that. Where is OIN? It is its goal to defend Linux in such circumstances. The problem is that TomTom was hit by a mixture of many patents (some not related to Linux), so it might choose to settle the whole bundle. To TomTom, this is not a Linux-only issue and given that TomTom does not even support GNU/Linux desktops, there is room for doubt.

“Microsoft is seeming to get a death wish,” argues another person. Like SCO, Microsoft might have no effective tricks left, so it’s hoping to take other people’s revenue, including that of Linux. This also makes its competition more expensive.

As pointed out yesterday, Microsoft is suffering badly and it is in debt territories by now. In fact, it’s stock is doing no better. From yesterday:

Microsoft shares hit 11-year low

[...]

Microsoft’s failure to announce more cost cuts sent its shares to an 11-year low on Tuesday

Even the Microsoft-friendly press was unable to spin this positively.

Shares of Microsoft sank 58 cents, or 3.4 percent, to $16.63 in midday trading amid a broader market sell-off.

Microsoft is approaching debt or is already in it. The economy makes it worse for them (people favour sub-notebooks where Windows is almost free in the gratis sense), but their approach against TomTom is tactless. They are suing many people who are also Microsoft customers. They are using intellectual monopolies (as applied to software) against a European company where software patents are not valid. What’s more, TomTom is no fan of patents [1, 2, 3, 4]. For TomTom, this whole story might actually bring publicity and sympathy. If they fight Microsoft, they’ll become heroes in the minds of many.

“[The] world is over for Microsoft,” argues another person, adding that it’s “Funny the attack on Linux at TomTim does not contain the 200+ they claim are on the Linux kernel.” This confirms that Microsoft realises it can’t compete without sabotaging others. It also puts in doubt those figures (# of patents) which Microsoft never defended.

“It also puts in doubt those figures (# of patents) which Microsoft never defended.”Further, says reader: “Now it could get bad for Microsoft as well, particularly if the FAT patents get broken.” They might be trying to scare those who are considering platforms like Android.

One person argues that “Common Name Space for Long and Short Filenames” is an area where prior art is futile and another person asks, “don’t all the mobiles that use flash-storage use FAT somehow?” FAT would indeed affect other Linux-powered gadgets, so it’s important to fight this battle to the end. “Monopoly abuse” can be used as a defense because FAT patents came up in the European courts in such a context before.

OIN is supposed to hop in and defend Linux, potentially by counter-suing. Failing to do so is failing to stand up to the promises. But then there’s Microsoft's own patent troll, Nathan Myhrvold, who serves ‘their’ extortionate OIN equivalent. Battles of patent ‘umbrellas’ ahead?

TomTom should challenge this one along with other affected parties and someone should encourage them not to settle. One reader argues that the “Big thing [is that] there are lot more effected parties. Microsoft could have just opened a Pandora’s box. [The] SCO case went south when more interested parties came out the woodwork — [parties] that SCO didn’t know what to do with.”

“TomTom could try embargoing Microsoft as well,” suggests another reader. He argues that “since most of there development is done overseas and is imported Microsoft is playing a really risky game of chicken.

“Delay on code imports would stuff Microsoft Windows 7 release.”

Arguing that “the cats out of the bag,” one reader suggests that this is a good reason to drop patent traps like Mono. Microsoft is a patent aggressor now and it expressed plans/intent to plant Mono in devices just like TomTom.

Microsoft is aiming at a weak target, according to a person who writes that:

In the beginning of 2008 TomTom traded at 70 euro per stock on the Dutch stockmarket. Now they are worth 3 euro per stock. Microsoft is hitting hard on a company that is already in the drain. How can TomTom afford to defend themselves after a disaster year like 2008 was for them? Microsoft has got money for sure, and with this economy everyone will be scared to step up against Microsoft. They are using the economic climate to bully the entire industry (remember TomTom is just one company, they used blackmail to extract license fee’s from many companies before this).

Soon MS will monopolize the patent trolling business. I hope people will react to this and create a new better faster light-weight FS sort of like what happened with the GIF -> PNG transition (and which is happening right now with the OGG revolution driven by Wikipedia and Mozilla).

To conclude in the words of a reader, “TomTom should never get into cross-license here, that is clearly Microsoft’s number-one option… mak[ing] it even more so look [like] anyone embedding Linux needs that [...] cross-license.” Some further discussion appears in LWN for those who are interested.

“I was going to spend my money on upgrading to Windows 7 when it is released, but after reading this, I am disgusted at Microsoft’s apparent greed…”

Source

patent threat
Photo under the GNU Free Documentation license

Update: TomTom is fighting back.

Dutch navigations solutions company TomTom NV ( TOM2.AE) said Thursday it rejects all Microsoft Corp.’s (MSFT) claims that it is infringing on eight of its patents.

[...]

Earlier this week, TomTom reported a EUR989 million fourth-quarter loss, and warned that it could breach its debt covenants. The bottom line was hit by lower sales in both the U.S. and Europe, TomTom’s main markets, but also by a EUR1.1 billion impairment charge related to the company’s 2007 acquisition of digital map maker Tele Atlas.

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16 Comments

  1. Shane Coyle said,

    February 26, 2009 at 8:39 am

    Gravatar

    Realistically, it appears to me that TomTom is in no position to wage a protracted legal battle here, so MS is gonna get a capitulation, and a Gigantic FUD Feather for it’s cap.

    Maybe we can get Baystar to invest in TomTom?…

  2. NotZed said,

    February 26, 2009 at 9:05 am

    Gravatar

    The only possible good (and it is rather good) outcome might be that device manufacturers agree on a new file-system to use for new devices. It wouldn’t take much to set the new standard, just need software so you can read it on windows to come with it.

    FAT is pretty shit to start with, but with flash drives and usb drives getting so big, it is also high time they started looking at a decent filesystem anyway. Shit knows there are plenty to choose from, and pretty soon just about every device will be using a linux kernel anyway. Which is really what it comes down to I guess – windows mobile/ce failed, try to extort their way into money from their competitors.

    (I realise that issue is probably a small one overall in this case, but it would benefit everyone).

  3. Victor Soliz said,

    February 26, 2009 at 9:32 am

    Gravatar

    All I know is that if TomTom loses, everyone on IT is next. So someone should help them.

    NotZed: That’s difficult, first of all, there are already zillions of flash drives formatted in FAT16/VFAT/FAT32 variation. Users are just too lazy to bother. About flash drives shipping formatted in another filesystem, I can already see MS not supporting this filesystem at all, so users will just return them…

    It seems they (MS) have been trying to introduce a new filesystem specialized for flash drives, somehow I think that after messing up FAT they are going to push this new filesystem and it is going to be ‘open’ in the same way .net and OOXML are ‘open’. ( http://en.wikipedia.org/wiki/ExFAT )

  4. Dan O'Brian said,

    February 26, 2009 at 9:40 am

    Gravatar

    I think what NotZed was suggesting is that these devices should come with the device drivers for the new FS for Windows/Mac/etc. Typically, these devices already have some sort of custom software anyway (ok, so thumb drives don’t, but anything more complicated than that usually does).

    If enough of these devices switched to the new FS, then Microsoft would be forced to support it. The key is to get all of the devices (or at least all of the major ones) to switch. “United they stand, divided they fall.”

  5. pcolon said,

    February 26, 2009 at 10:53 am

    Gravatar

    Didn’t the Zaurus use a lightweight FS (JFFS)?

  6. Roy Schestowitz said,

    February 26, 2009 at 11:02 am

    Gravatar

    I’m not sure that’s the key issue. The main issue is that Microsoft is not only looking for infringement but it’s also resorting to extortion (see details above) behind the scenes in order for companies to pay them for parts of Linux. Failing that, Microsoft is suing.

    It’s not about one single patent or technology. It’s about mimicking/reverse-engineering Microsoft, so Mono comes to mind too.

    TomTom gave Microsoft a fight and it continues to do so, which makes it praise worthy.

  7. twitter said,

    February 26, 2009 at 4:25 pm

    Gravatar

    M$ has opened a larger can of worms than it might like in the near future. They think they are going to scare up some quick and easy licensing revenue, but they are really going to scare everyone away from everything M$. GNU dominates the embedded market now. Does M$ really think that everyone is going to abandon the GNU toolkit for something stupid like FAT? No, FAT and other M$ non standards are going to be the big losers. Regardless of who wins or loses the TomTom case, M$ is going to lose more ground to free standards.

  8. Victor Soliz said,

    February 26, 2009 at 5:45 pm

    Gravatar

    I think what NotZed was suggesting is that these devices should come with the device drivers for the new FS for Windows/Mac/etc. Typically, these devices already have some sort of custom software anyway (ok, so thumb drives don’t, but anything more complicated than that usually does).

    But you would have to store the drivers inside a CD or a… FAT partition.

    The user will prefer the one that doesn’t require you to install anything to be used.

  9. ZiggyFish said,

    February 26, 2009 at 6:14 pm

    Gravatar

    Most or all claims in the Suit either have prior art (which invalidates the patient), only implemented for interoperability. or is a software patient (which is illegal). So I believe TomTom will win.

  10. Roy Schestowitz said,

    February 26, 2009 at 6:22 pm

    Gravatar

    Some people who are affiliated with TomTom are watching this one closely (I think we had some in IRC) to gather evidence. They will hopefully fight for all of us.

  11. Shane Coyle said,

    February 26, 2009 at 8:23 pm

    Gravatar

    Well, if TomTom lasts long enough without going broke, they just need to ask MS to bring the device they patented to court with them that day.

    Here is a pretty concise look at Microsoft’s FAT patents through Bilski glasses.

  12. Jose_X said,

    February 26, 2009 at 11:45 pm

    Gravatar

    Shane, I followed the nested links. I am not holding my breath that Bilski will stop software patents that have been (or get) worded properly as perhaps is this one: http://www.freepatentsonline.com/5533183.html being used on Red Hat . [Ignore the abstract at the top. Note how claim one starts off. "A method of operating a system that includes: a display; a user input device ..."]

    We need a stronger decision or a favorable change in the law.

    OR ..

    ..to have the current patent law be called unconstitutional wrt inventions over software “methods” as above and anything similar.

    I think patenting (eg) software methods is unconstitutional http://www.usconstitution.net/const.html . The reason being that in today’s world, the US Constitutional support for patents is not fulfilled. They don’t “promote the progress of science and the useful arts”. At which point, Amendment 4 might be violated (abridge speech), but likely Amend 10 is violated: rights not reserved to Congress are reserved to the states and people.

    Amend. 4 or 10 violation would occur because the patent restrictions (found in USC title 35) applied to software “methods” along the lines of the Red Hat example above restrict significantly and unreasonably people’s ability to create and share and various other things.

    Tied in to this unreasonableness and to the large number of people so restricted and to the fact the arts and sciences are not promoted ..is the nature of software (though models.. accessible to everyone without interference and cheap to implement and distribute, ie, to create and share), its low overhead for participation (many are restricted in practice by the monopoly grants), and the terribly broad scope of such patents being granted (they cover the author’s discover/invention and then a whole lot more). [Note: This contrasts in part with copyrights on software which don't step on too many people's toes (they are much more narrow); hence, they may arguably end up promoting the arts and sciences and apply to only the author's writings and discoveries, but worse case may not restrict people too much (plagiarism laws or whatever would apply though).]

    How/why does Amendment 10 apply? States manage business laws, for example, which restrict creation and sharing somewhat. You also have Congress rights like the creation of money which also restricts creating and sharing. However, it would be for each state (the 50 states ..and territories I suppose) to consider the patenting question once it stops being a law that promotes the arts and sciences OR its reach, using many metrics, goes beyond protecting the author for *his/her* work (only) — read “Powers of Congress” in the Consti link above. Giving the states and people the remaining powers was intentional by design of the Constitution. It allows for many matters affecting daily life to vary across states and the citizen local populations, giving citizens the option to pick where they will reside and hence deal with law variations.

    I will rework the above explanations. Some of what I just wrote, I only thought about precisely in the last hour as I read over bits of the US Constitution (I was trying to give some more formal meaning to “the right to create and share”.)

    Note also that mono following dotnet so closely complicates this since Microsoft’s and trolls’ possible patents on dotnet, even if restricted significantly in scope by the courts, in light of the above arguments, would still cover mono. This is a shame since it’s not that difficult to change mono around enough and still get most of the same product features. It might one day be ruled that some particular mono fork that also would fall under patents affecting mono would be safe nevertheless after a court ordered narrowing of the patent’s scope to the specific invention described in the patent application. And, as mentioned here (though not formally proved or exhaustively argued) http://boycottnovell.com/2009/02/04/the-api-trap-part-1/ , it’s an exercise to create APIs that violate your patents. Lesson: avoid the API of patent hostile aggressors; otherwise, even a favorable court ruling limiting software patents’ scope would not save you.

  13. Shane Coyle said,

    February 27, 2009 at 6:02 am

    Gravatar

    No need to change the law, just enforce it properly.

    Software is not patentable, it is merely mathematical algorithms. In order to be patentable, they’d need a machine or device of some sort, copyrights and trade secrets apply to software. If the folks from Redmond were Microchip instead of Microsoft, they’d have a better chance.

    By loading/running software on a general purpose computer – what it was invented to do, there is no transformation – the PC is still a PC and is capable of running any other compatible software as well.

    …There have been interesting patent rejections coming from the USPTO’s Board of Patent Appeals and Interferences (BPAI) since the Bilski ruling was handed down by an en banc hearing of the Court of Appeals for the Federal Circuit (CAFC). One is the rejection of one of IBM’s database query patents. It was rejected because the innovation isn’t “tied to a particular machine”. So it’s a happy coincidence that MS claims their technology is running on all sorts of devices. Foot, meet mouth.
    The BPAI goes on to justify the rejection by pointing out that the “system” on which the innovation operates is “not recited in terms of hardware or tangible structural elements”, which is to say that the patent is rejected because the elements of the claim are “implemented solely in software or algorithms”.

    Have faith, the USPTO and the Courts are coming around…

  14. Jose_X said,

    February 27, 2009 at 5:29 pm

    Gravatar

    Shane, I don’t want to dump cold water anywhere for it’s own sake, but I want to be realistic about this since in the end fooling myself won’t help. Fooling myself and tasting Microsoft’s candy, for example, won’t save me in court tomorrow.

    So, I can be wrong, but let me point out a few things.

    http://www4.law.cornell.edu/uscode/35/usc_sec_35_00000100—-000-.html If you look at this link, you will see that “process” is partially defined as “process, art or method, and includes a new use of a known … machine….”

    If you look at the patent currently being used against Red Hat that I quoted earlier, you’ll see that the software patent is on “a method of operating a system that includes: a display; a user input device ….”

    So, their “software patent” is a patent on a supposedly new “use of a known … machine,” just as accepted by Title 35 (US law).

    To put it in other words, it appears, based on layman’s reading of a part of the US patent law, that you can in fact get a legal patent on a new way to use a computer. One of the patents being used against Red Hat is about just such a “new” way of using a computer.. by creating multiple “workspaces”.

    [Aside: We can argue that the computer is still only being used as originally created, to run *any* software (let's assume it was patented this way), and that the new specified process ("workspaces") is but a special case of use of a computer which overlaps with past general patent on computers. However, courts may rule that even if the computer was created with this intention, that this is too vague. It would be like the creater of the transistor trying to patent "any and all uses of this device." If allowed, this would pre-empt any patent that would ever use something with a transistor in it. Anyway, there are contradictions or at least a lot of gray fuzzy areas implied by the patent laws. Courts get last say on existing laws, whether you think that is fair or not, and you can't anticipate what the ruling will be.]

    So software itself is not a machine, etc, that can be processed, but the patent used against Red Hat was worded to describe a new way of using a computer. And this appears to be patentable subject matter.

    The IBM SQL patent shown and the FAT patent may not be worded properly. That is, these patents might be laying claim to inventions that are not something you can patent. In other words, Microsoft did not (eg) claim to patent a new way to use a computer (haven’t read that patent, btw). IBM apparently did not patent a machine or a process tied to a machine. I get the feeling these things could be rectified through proper re-wording. For example, Microsoft might be able to amend (?) the patent to describe a way of using a computer: by storing data this and that way (as per FAT).

    So while you can’t patent a FAT. US law may (stupidly) allow you to patent the using of a computer by storing data in a FAT format.

    I’m just reading this over quickly and making some guesses. We’ll see what happens, but I don’t think Bilski saved the day. [I oscillate over just how good Bilski was].

    In the earlier reply, I was trying to argue (layman-ly) that the US patent law should not allow you to patent software if it pretends to fulfill the requirements of the US Constitution. The US Constitution takes precedent over any law Congress passes since the Constitution is a contract among the States and cannot be undone/changed/amended as easily as Congress can pass laws.

    I really think there may be valuable points in that earlier reply, but I am a layperson and have not tried to argue too much along those lines (it was only yesterday that I specifically read parts of the Constitution which I invoked in the earlier reply .. I have ideas but have not studied these legal papers or law except in passing).

    One thing that guides me is the equitable bent of rulings. If the law is ever vague in some point, you can try to get the judges to rule in a matter that seems most fair to all parties based on what the law apparently was trying to accomplish. Software patents don’t work (something you’d have to argue well in court), and the Constitution is written such that I think you can argue (and I attempted this above in part) that patents are acceptable only if they help not hinder.

  15. Jose_X said,

    February 27, 2009 at 5:58 pm

    Gravatar

    The above link fails because the website submitted info is modified. The url should have 4 dashes not 2 hyphens.

    Try going here http://www4.law.cornell.edu/uscode/35/usc_sup_01_35_10_II_20_10.html and then following the link into section 100 “Definitions.”

  16. Shane Coyle said,

    February 27, 2009 at 6:38 pm

    Gravatar

    A new way of using a computer would be to use it to prop open a heavy door, not to interpret software instructions, in my opinion ;^ ).

    And yes, no one ever knows for sure what the rulings will be, mainly because the parties are often very careful to only allow very specific, narrowly-construed questions ever be eligible for a ruling.

    In the end, all of the companies involved in this software patent myth have a vested interest in its perpetuation, lest they allow competition. Which is another reason I think TomTom would settle, rather than risk invalidating their own "IP" assets.

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