EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.22.09

A Deeper Look at TomTom’s Patent Case Against Microsoft

Posted in Courtroom, Free/Libre Software, GNU/Linux, GPL, Kernel, Microsoft, Patents, TomTom at 7:17 am by Dr. Roy Schestowitz

1147987_old_maritime_map
Can Microsoft navigate its way out of this one?

Summary: A detailed overview and some analysis of TomTom’s countersuit

LAST month we wrote about Microsoft's case against TomTom and a few days ago we put forth some quick initial coverage of the counter action from TomTom. The whole situation is reason for realisation that Microsoft bullies "open source". The following excellent analysis from Andy Updegrove says that this aggressive strategy will break Microsoft apart from the inside. He also writes:

The reason the licensing question matters is the message that it sends: Microsoft has for years been approaching vendors alleging that it owns 235 patents that it claims are infringed by popular open source software, and that several dozen of these patents are infringed by any software distribution based upon the Linux kernel. These discussions are always behind the scenes, but when Microsoft succeeds in reaching agreement with a significant vendor, and especially a Linux vendor (like Novell), Microsoft makes an announcement, and puts another notch in its gun. The next time it visits a vendor – or even an end user – that list gets to be longer, and the person receiving the next visit is tempted to think that there must be a basis for all those other companies signing on the dotted line. So, it would appear, the smart thing would be to get in line as well.

It all started with Novell, which came to Microsoft to sign the patent deal. In fact, watch this OpenSUSE talk from FOSDEM [Ogg]. It’s all about patents, so a preliminary assessment leaves a bad taste.

But anyway, that’s where we are today and Microsoft’s patent aggression against Linux began just a couple of weeks after the Novell deal when Steve Ballmer made some rude remarks. To repeat them from the source:

In mid-November, shortly after the pact was announced, Microsoft chief Steve Ballmer said companies that sell or run Linux, but aren’t covered under the Novell deal, are illegally using Microsoft’s IP. “We believe every Linux customer basically has an undisclosed balance-sheet liability,” he said.

He said in a later meeting: “I do think it clearly establishes that open source is not free.”

Going back to the TomTom case, there are many new Slashdot comments and also LinuxToday comments. Carla Schroder, the editor of LinuxToday, cautiously called TomTom’s response a “dual GPL dodge” when she wrote:

So, is this turning into a joint venture GPL dodge? Jeremy Allison says that

“It isn’t a case of cross-license and everything is ok. If Tom Tom or any other company cross licenses patents then by section 7 of GPLv2 (for the Linux kernel) they lose the rights to redistribute the kernel *at all*.”

So rather than tiny TomTom heroically standing up to the big mean Borg, it looks more like business as usual.

One reader, Frank Earl, responded to Carla by making a correction and rightly adding that TomTom ought to have gone for the jugular (or roots) of software patenting.

This depends on whether or not TomTom settles that way. These things often do NOT end up being cross-licensing deals once they get into the courtroom pissing match we see here. It’s only a problem if they cross-license. :-D

My regret is that they led with more patents instead of running the Bilski decision up the flagpole first. With Bilski, MS’ stuff is abjectly invalid and wouldn’t pass muster on a review at this point because the USPTO’s already rejecting things like that out of hand, citing that decision as being a reason for unpatentabilty.

CNET stresses that TomTom’s defensive counterstrike does not directly defend Linux and therefore it does not resolve the problem; it pushes it away which is a form of procrastination.

TomTom fights back, but not over Linux

[...]

I just wish that it were fighting over FAT, not GPS.

Both sides have engaged exceptional counsel, as Groklaw notes, but I doubt that the case will ever get to trial. Very few lawsuits ever make it so far, and the counsel on both sides will get paid handsomely to resolve the case at the lowest possible cost, which invariably means an out-of-court settlement.

That, too, doesn’t work in favor of open source. I think that it’s fair to say that open source would benefit–whatever the outcome–from seeing Microsoft’s patents put on trial as they relate to Linux. Not only does TomTom’s countersuit ignore the Linux-related patents, but given the likelihood that the suit will settle, it’s likely that open source will be hurt, not helped, by the FUD (fear, uncertainty, doubt) ignited by the lawsuits.

Where are those 42 patents from Microsoft anyway? If TomTom uses a classic Linux (kernel), as argued by a guru of gpl-violations, then why did Microsoft narrow down its claims so significantly?

Still, Microsoft has not backed off its claim that it owns 42 patents used in the creation of the Linux kernel, and its suit against TomTom indicates that the company intends to defend that claim in court, if necessary.

Here is another take, this time from IDG:

GPS device maker TomTom has shot back at Microsoft with a claim of patent infringement, after the software giant raised concerns in the Linux community with a recent lawsuit against TomTom.

[...]

That concerned Linux supporters, who worried that Microsoft might make good on past statements that it owns many patents for technologies used in Linux. But Microsoft said open source is not the focal point of its suit against TomTom. The case is about TomTom’s specific implementation of the Linux kernel, Microsoft said.

Mr. gpl-violations has already refuted Microsoft’s argument that TomTom has a “specific implementation” of Linux. He did inspect the code, too.

It’s interesting to find that Microsoft sent its claim to the International Trade Commission (ITC), which seems to indicate that it’s the old embargo strategy, whose purpose is to strangle competitors and pressure them into unwanted deals very quickly.

Microsoft filed its claim with the ITC, as well as a civil suit in federal court in Seattle, after the companies were unable to reach a patent-licensing agreement.

Microsoft did the same thing when it attacked Primax using patents. As Mary Jo Foley points out, TomTom is no easy nut for Microsoft to crack though. Maybe it’s because of the GPL.

It looks like TomTom isn’t backing down from its refusal to become one of the growing list of companies signing cross-patent licensing agreements with the Softies…. And it looks like TomTom’s suit isn’t deterring Microsoft from its original complaints, either, based on the company’s statement on TomTom’s countersuit.

ITWire has amassed this list of the patents at play:

The four patents cited in the suit filed by TomTom are:

US Patent 5,902,350: Generating a maneuver (sic) at the intersection through a turn lane;

US Patent 5,938,720: Route generation in a vehicle navigation system;

US Patent 6,600,994:   Quick selection of destinations in an automobile navigation system; and

US Patent 6,542,814: Methods and apparatus for dynamic point of interest display.

Some more new references regarding the countersuit are included below for completeness and future use:

While I have no idea what is happening behind the scenes with the two companies, it appears that TomTom is one of the first to stand up against Microsoft’s use of patents to throw its weight around. The attention centering around the Microsoft filing is in relation to TomTom’s use of the Linux kernel to implement its file naming system. Many believe that this is the first blow from Microsoft in an all-out war against Linux. Whether or not this is the case, TomTom won’t be rolling over and settling behind closed doors back the looks of it.

The February suit brought by Microsoft said that TomTom was using part of its GPS technology that relied on the Linux OS.

That assertion raised eyebrows in the Linux community. For the past several years, Microsoft has claimed that it owns the patents to technology used in Linux. The open-source community has gone back and forth with the company, and recently Microsoft said it was willing to work out some kind of agreement with developers. Microsoft has said that the TomTom suit is not targeting open-source software.

For years, people in the software industry have noticed that patents have become the nuclear stockpiling of the tech industry. Lots of companies feel the need to stock up on as many patents as possible, not for any good reason — but to have something to scare people off from suing, knowing that they’ll get sued right back.

As one person wrote, “it’s your turn, Microsoft.”

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

8 Comments

  1. saulgoode said,

    March 22, 2009 at 9:04 am

    Gravatar

    This post is for the most part a response to the Frank Earl/Carla Schroeder exchange.

    It seems to me that even if TomTom were to end up settling with Microsoft, or MS drops the case, or some other “inconclusive” action results, there would still be sufficient foundation for a third party (such as the SFLC or a FOSS-friendly corporation) to file for a declaratory judgment based on a controversy having been shown.

  2. Roy Schestowitz said,

    March 22, 2009 at 9:38 am

    Gravatar

    Yes, it’s preferable to have it resolved by elimination of claims.

    Someone told me last week that Moglen was kept very busy by this case. I think that LF/OIN and FSF/SFLC really want to use it as an opportunity.

  3. twitter said,

    March 22, 2009 at 11:40 am

    Gravatar

    Invalidating the claims is the only way to win this. The other way to settle this, cross licensing, is unacceptable to everyone. If it’s true that they lose the right to redistribute free software, cross licensing is just the kind of thing M$ would like. M$’s claims are so bogus to begin with that the answer would be clear if it were not for the fraudulent state of the US patent courts.

  4. Roy Schestowitz said,

    March 22, 2009 at 12:12 pm

    Gravatar

    I have come across a new storyline from Microsoft apologists. It portrays Microsoft as a poor victim here when in fact it knew very well that it was trapping TomTom just days after announcing financial agony, not just difficulties.

    Microsoft may as well be competing with SCO for the evilness trophy.

  5. David Gerard said,

    March 22, 2009 at 12:59 pm

    Gravatar

    I don’t see why TomTom wouldn’t try both tacks – Bilskiing the Microsoft case while bringing their own case.

  6. Roy Schestowitz said,

    March 22, 2009 at 2:57 pm

    Gravatar

    They might need financial support from LF et al.

  7. Roy Schestowitz said,

    March 22, 2009 at 4:11 pm

    Gravatar

    Another article that I missed speaks about the role of apparent embargo tactics (ITC).

  8. Roy Schestowitz said,

    March 22, 2009 at 5:28 pm

    Gravatar

    “The suit comes less than a month after Microsoft filed a complaint with the U.S. International Trade Commission in Washington seeking to block some of TomTom’s U.S. imports.”

    http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=MSFT%3AUS&sid=aYVbEmayPJFM

What Else is New


  1. Links 24/4/2019: Chrome 74, QEMU 4.0 Released

    Links for the day



  2. Supreme Court of the UK, Which Habitually Throws Out European Patents, May Overturn Troublesome Unwired Planet v Huawei Decision

    A lot of European Patents are facing growing scrutiny from courts (Team UPC, including Bristows, publicly complains about it this month) and "greenwashing" of the Office won't be enough to paint/frame these patents as "ethical"



  3. German Federal Patent Court Curbs the Patent Maximalism of the EPO, Which Promotes Patents on Nature and/or Maths Every Single Day

    European courts are restraining the EPO, which has been trying to bypass or replace such courts (with the UPC); it certainly seems as though European Patents rapidly lose their legitimacy or much-needed presumption of validity



  4. Any 'Linux' Foundation Needs to Be Managed by Geeks, Not Politicians and PR People

    Linux bureaucracy has put profits way ahead of technical merits and this poses a growing threat or constitutes risk to the direction of the project, not to mention its ownership



  5. Links 23/4/2019: Kodi 'Leia' 18.2 and DeX Everywhere

    Links for the day



  6. Code of Coercion

    Entryism is visible for all to see, but pointing it out is becoming a risky gambit because of the "be nice!" (or "be polite!") crowd, which shields the perpetrators of a slow and gradual corporate takeover



  7. António Campinos Would Not Refer to the EPO's Enlarged Board of Appeal If He Did Not Control the Outcomes

    António Campinos and his ilk aren’t interested in patent quality because his former ‘boss’, who publicly denied there were issues and vainly rejected patent quality concerns as illegitimate, is now controlled by him (reversal of roles) and many new appointees at the top are "yes men" (or women) of Campinos, former colleagues whom he bossed at EUIPO (as expected)



  8. Links 22/4/2019: Linux 5.1 RC6, New Release of Netrunner and End of Scientific Linux

    Links for the day



  9. USPTO and EPO Both Slammed for Abandoning Patent Quality and Violating the Law/Caselaw in Order to Grant Illegitimate Patents on Life/Nature and Mathematics

    Mr. Iancu, the ‘American Battistelli’ (appointed owing to nepotism), mirrors the ‘Battistelli operandi’, which boils down to treating judges like they’re stooges and justices like an ignorable nuisance — all this in the name of litigation profits, which necessitate constant wars over illegitimate patents (it is expensive to prove their illegitimacy)



  10. IRC Proceedings: January 27th, 2019 – March 24th, 2019

    Many IRC logs



  11. IRC Proceedings: December 2nd, 2018 – January 26th, 2019

    Many IRC logs



  12. Links 21/4/2019: SuperTuxKart's 1.0 Release, Sam Hartman Is Debian’s Newest Project Leader (DPL)

    Links for the day



  13. The EPO's Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are 'Bygones'

    The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace



  14. A Reader's Suggestion: Directions for Techrights

    Guest post by figosdev



  15. Links 20/4/2019: Weblate 3.6 and Pop!_OS 19.04

    Links for the day



  16. The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don't Represent Europe But Hurt Europe

    The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the 'business' of suing and printing lots of worthless patents



  17. The Linux Foundation Needs to Change Course Before GNU/Linux (as a Free Operating System) is Dead

    The issues associated with the Linux Foundation are not entirely new; but Linux now incorporates so many restrictions and contains so many binary blobs that one begins to wonder what "Linux" even means



  18. Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

    Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States



  19. Links 19/4/2019: PyPy 7.1.1, LabPlot 2.6, Kipi Plugins 5.9.1 Released

    Links for the day



  20. Links 18/4/2019: Ubuntu and Derivatives Have Releases, digiKam 6.1.0, OpenSSH 8.0 and LibreOffice 6.2.3

    Links for the day



  21. Freedom is Not a Business and Those Who Make 'Business' by Giving it Away Deserve Naming

    Free software is being parceled and sold to private monopolisers; those who facilitate the process enrich themselves and pose a growing threat to freedom in general — a subject we intend to tackle in the near future



  22. Concluding the Linux Foundation (LF) “Putting the CON in Conference!” (Part 3)

    Conferences constructed or put together based on payments rather than merit pose a risk to the freedom of free software; we conclude our series about events set up by the largest of culprits, which profits from this erosion of freedom



  23. “Mention the War” (of Microsoft Against GNU/Linux)

    The GNU/Linux desktop (or laptops) seems to be languishing or deteriorating, making way for proprietary takeover in the form of Vista 10 and Chrome OS and “web apps” (surveillance); nobody seems too bothered — certainly not the Linux Foundation — by the fact that GNU/Linux itself is being relegated or demoted to a mere “app” on these surveillance platforms (WSL, Croûton and so on)



  24. The European Patent Office Does Not Care About the Law, Today's Management Constantly Attempts to Bypass the Law

    Many EPs (European Patents) are actually "IPs" (invalid patents); the EPO doesn't seem to care and it is again paying for corrupt scholars to toe the party line



  25. The US Supreme Court (SCOTUS) Once Again Pours Cold Water on Patent Maximalists

    Any hopes of a rebound or turnaround have just been shattered because a bizarre attack on the appeal process (misusing tribal immunity) fell on deaf ears and software patents definitely don't interest the highest court, which already deemed them invalid half a decade ago



  26. Links 17/4/2019: Qt 5.12.3 Released, Ola Bini Arrested (Political Stunts)

    Links for the day



  27. Links 16/4/2019: CentOS Turns 15, Qt Creator 4.9.0 Released

    Links for the day



  28. GNU/Linux is Being Eaten Alive by Large Corporations With Their Agenda

    A sort of corporate takeover, or moneyed interests at the expense of our freedom, can be seen as a 'soft coup' whose eventual outcome would involve all or most servers in 'the cloud' (surveillance with patent tax as part of the rental fees) and almost no laptops/desktops which aren't remotely controlled (and limit what's run on them, using something like UEFI 'secure boot')



  29. Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF

    Restrictions on speech are said to have been spread and reached some of the most liberal circles, according to a credible veteran who opposes illiberal censorship



  30. Corporate Media Will Never Cover the EPO's Violations of the Law With Respect to Patent Scope

    The greed-driven gold rush for patents has resulted in a large pool of European Patents that have no legitimacy and are nowadays associated with low legal certainty; the media isn't interested in covering such a monumental disaster that poses a threat to the whole of Europe


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts