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03.25.09

TomTomaginot Line: Fighting Microsoft Using Patent Pools

Posted in Law, Microsoft, OIN, Patents, TomTom at 5:43 am by Dr. Roy Schestowitz

Water danger
Patent pools to the rescue?

Summary: What a patent blanket/inventory may mean to TomTom’s two-way battle with Microsoft

A FEW DAYS ago we reposted the press release about TomTom joining OIN (well, OIN mailed it to us) and now we have the chance to remark on news coverage.

One of the fastest to report on this was SJVN, who published “TomTom gets allies in Microsoft Linux patent lawsuit fight.” It’s a good short article.

When Microsoft first sued TomTom for patent violations in TomTom’s Linux-powered navigation devices, I wasn’t sure how much of a fight TomTom would put up. Legally TomTom was between a rock and a hard place. You can’t use restricted-use patents in GPLed software. If Microsoft just wanted to use the lawsuit as a hostile takeover tactic, TomTom didn’t have anything like Microsoft’s financial resources to fight them with.

Glyn Moody chose a provocative headline by suggesting that the TomTom case is the new SCO case.

I don’t think this materially affects the Microsoft lawsuit, since these OIN patents are not intended to be used for attack, more to remove possible obstacles. It simply emphasises the increasingly alignment of TomTom’s interests with those of the wider GNU/Linux community, and represents a nice poke in the eye for Microsoft.

Moody is in favour of this idea which he characterises as “Patent Commons”, but we reserve some judgment against this approach which IBM’s Arnaud Le Hors wrote about two days ago (on patent pools):

The Eco-Patent Commons has momentum

[...]

The Eco-Patent Commons was launched in January 2008 with the participation of Nokia, Pitney Bowes, and Sony, in addition to IBM.

Later Bosh, Dupont, and Xerox joined, and today WBCSD announced that Ricoh and Taisei joined the commons and Dupont contributed more patents.

How convenient it must be for IBM to say all this. How many patents does this company have again? The only solace is that IBM — unlike Microsoft — does not attack Free(dom) software. It would be counter productive.

It appears as though the editor (“Leader”) of ZDNet UK has once again slammed Microsoft for its patents-centric approach against Linux. He did so several times recently, e.g. when Microsoft signed the patent deal with Brother.

The warning sound of TomTom

[...]

[T]hose were the days when Bill Gates could say that software patents had the potential to put the industry at “a complete standstill” and with good reason. If the sort of protection Microsoft now claims for itself had been available to CP/M then, Microsoft would never have created its monopoly, nor amassed a fraction of its power.

Now it has, the rules have changed. Microsoft is perfectly happy, while proclaiming openness and interoperability, to find a company in dire financial straits and then threaten it with expensive legal action over what any self-respecting programmer would identify as a hackish kludge–something that advances the art of computer software not one bit.

David Meyer from ZDNet UK reported on these TomTom-OIN affairs, but he added no new information.

The satnav maker announced it had signed up to the OIN on Monday. By joining, it gained access to more than 275 patents and patent applications. In return, it has to open up its own intellectual property to other OIN members, royalty-free.

The implications of this are more properly discussed over at Groklaw and it remains to be seen how TomTom can use patents to fight some more patents (the GPL forbids cross-licensing in this case), as opposed to pushing for the ‘Bilski test’ — that is, seeing if it can be applied to software.

Dana Blankenhorn voices an opinion and The Register adds very little information other than some background that leads up to the OIN story.

TomTom has now thrown its name into the ring, and has probably bagged a few more supporters along the way in its noisy legal spat with Microsoft.

The software giant issued a lawsuit against TomTom in late February when it accused the firm of infringing eight of its patents.

Just last week TomTom hit back with a patent claim of its own in which it accused Microsoft’s Streets and Trips products of infringing four patents in the vendor’s vehicle navigation software.

This was also covered by Heise and Microsoft’s PR tool, Ina Fried. It was mentioned along the way in Tectonic, but there is too little in-depth analysis that we could find.

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