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

04.04.09

TomTom Case is Closed, But the Fight Over FAT Can Hurt Microsoft

Posted in Courtroom, GNU/Linux, GPL, Kernel, Microsoft, Patents, TomTom at 5:55 am by Dr. Roy Schestowitz

Steve Ballmer FAT

Summary: A detailed overview of TomTom/FAT highlights and events which occurred in the past week

THE TOMTOM CASE was a very significant turning point and milestone that can affect judgment in the development of GNU/Linux.

“The story may be over for TomTom, but not for FAT, which will probably be defended (hopefully cleared) by entities other than TomTom.”As a quick recap, TomTom was sued by Microsoft , TomTom counter sued, and it also joined the OIN. Eventually, however, TomTom disappointed by settling rather than challenging the patents and this has impact on projects like Mono and MonoDevelop.

Here is a summary of the last few developments, which indicate that this case if not over yet. The story may be over for TomTom, but not for FAT, which will probably be defended (hopefully cleared) by entities other than TomTom.

Here is Microsoft’s announcement of the settlement, which arrived early in the week. Microsoft tells its shareholder a self-congratulatory story.

Selected Coverage

For future reference, we have gathered a lot of reports which we bind together as follows.

Ryan Paul at Ars Technica: Microsoft and TomTom settle patent dispute

Todd Bishop at TechFlash: TomTom will remove some Linux features in Microsoft settlement

Elizabeth Montalbano at IDG: TomTom to Pay Microsoft to Settle Patent Cases

Glyn Moody at IDG: Bad News: Microsoft Gets its Way with TomTom

In other words, Microsoft gets to say that TomTom acknowledges Microsoft’s file management patents – the ones that touch Linux. This means that Microsoft can now go around to other embedded systems manufacturers and say: “Well, TomTom settled, so they obviously thought the patents were good – wouldn’t it be wise to pay up too?”

This is really starting to play out just as I feared in the beginning. It will be interesting to see how Microsoft proceeds now: whether it openly threatens others using Linux, or does everything discreetly. I predict the latter, but the effect on Linux in this market will still be chilling.

Mike Masnick at DechDirt: TomTom Realizes Microsoft’s Pointy Patent Stick Is Too Sharp… Settles Patent Dispute

What’s still unclear, however, is how this settlement deals with the questions that were raised over GPL’d software used by TomTom. As we noted, the GPL license that covers components of TomTom’s software forbid it from putting any restrictions on the distribution of the software. A deal with Microsoft could violate the GPL and cause trouble for TomTom down the road. Perhaps the company is betting that any legal battle on that front would be cheaper than fighting Microsoft’s patent lawyers in court.

Dana Blankenhorn mat ZDNet: TomTom surrenders to Microsoft in patent fight

The Software Freedom Law Center has not yet hired a patent attorney, a job search it began online March 4, and the Open Innovation Network has not gone beyond its acceptance of TomTom’s membership, alongside that of Novell, released March 23.

This was mentioned along the way in many other Web sites.

No clarity on validity of Microsoft’s claims against TomTom: Red Hat has issued a short statement in response to yesterday’s news that TomTom and Microsoft had settled their patent scrap out of court, in which the company says that “without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid”

Mary Jo Foley correctly points out that TomTom at least signed the settlement in good faith.

Bottom line: TomTom — unlike some other companies developing around Linux which have signed patent-licensing deals with Microsoft — isn’t licensing Microsoft’s FAT as part of this agreement.

Richi Jennings presents this summary of coverages and there is also an April Fool’s joke about TomTom buying Microsoft. Additional coverage can be found in

The Microsoft Spinners

As always, there are Microsoft 'moles' in the press and they are telling a different story in order to promote the company that they support (or indirectly pays their wages). Here is the unofficial ‘Microsoft statement’ from its PR person in CNET (Ina Fried) and here is Microsoft fan Joe Wilcox, who characterises this as a win for Microsoft. Microsoft fan Richard Waters characterises this as a win for Microsoft as well (despite the fact that both sides sued and then settled) and the Microsoft-affiliated press spins this too (and makes factual mistakes, by its own admission).

GPS navigation specialist TomTom can breathe a sigh of relief today and wipe the beads of cold sweat off its anthropomorphic forehead. The company has settled the patent infringement claims Microsoft (Nasdaq: MSFT) brought against it last month.

In what looks like a total victory for Microsoft, TomTom will send license fees to the software giant and stop using a couple of vital file system patents. “When addressing IP infringement issues, there are two possible paths: securing patent coverage or not using the technology at issue,” said Microsoft’s licensing head Horacio Gutierrez in a written statement. “Through this agreement, TomTom is choosing a combination of both paths.”

It’s Just Round One

We wrote about the settlement with TomTom some days ago, but as the SFLC stresses, this is “Settled, But Not Over Yet.”

Today’s settlement between Microsoft and TomTom ends one phase of the community’s response to Microsoft patent aggression, and begins another. On the basis of the information we have, we have no reason to believe that TomTom’s settlement agreement with Microsoft violates the license on the kernel, Linux, or any other free software used in its products. The settlement neither implies that Microsoft patents are valid nor that TomTom’s products were or are infringing.

In sight of the settlement, Groklaw too decided to emphasise that this is not over.

There’s more. Red Hat’s legal eagles have put out a statement too, the meat of which is this: “Red Hat was not a party to this case. Even so, without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid.”

In fact, SFLC says they believe they are invalid:

The FAT filesystem patents on which Microsoft sued are now and have always been invalid patents in our professional opinion. SFLC remains committed to protecting the interests of our clients and the community. We will act forcefully to protect all users and developers of free software against further intimidation or interference from these patents.

SFLC, working with the Open Invention Network and the Linux Foundation, is pleased to participate in a coordinated, carefully graduated response on behalf of all the community’s members to ongoing anti-competitive Microsoft conduct. We believe in strength through unity, and we think our community’s unity in the face of these threats has helped to bring about Microsoft’s quick settlement on all issues with TomTom.

Steven J. Vaughan-Nichols phrased it a little differently, arguing that the “Microsoft-TomTom settlement is end of a battle, not the war.”

The Software Freedom Law Center, an organization focused on protecting open-source and free software, said in a statement that the “settlement between Microsoft and TomTom ends one phase of the community’s response to Microsoft patent aggression and begins another. On the basis of the information we have, we have no reason to believe that TomTom’s settlement agreement with Microsoft violates the license on the kernel, Linux, or any other free software used in its products. The settlement neither implies that Microsoft patents are valid nor that TomTom’s products were or are infringing.”

Matt Asay, a lawyer by training (but less so by profession), is expecting a “round two.”

Red Hat, for its part, declares that “without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid.” And Pamela Jones of Groklaw, a highly influential open-source legal blog, deprecates Microsoft’s claims (“What? You thought Microsoft’s spin on things was always gospel?”), citing the Software Freedom Law Center’s commitment to sticking up for Linux, even if TomTom quickly caved.

Linux Pro Magazine tells a similar story and quite consistently they all cite the SFLC. We are aware that Eben Moglen had to cancel or postpone his journey to Iceland because the SFLC had gotten terribly busy (due to the TomTom case).

Groklaw has some of the corresponding filings.

Two notices of dismissal have been filed with the courts — Microsoft’s in Washington State, and TomTom’s in Virginia, each dismissed without prejudice, ending both patent litigations. “Without prejudice” means that either could ramp it up and do this some more in the future, should circumstances arise that made it necessary. But in most cases, it means the litigation, or whatever, is over. Remember when SCO withdrew “without prejudice” its emergency motion to sell its assets, or Novell’s assets, depending on your point of view? We never saw that again, did we, despite it being withdrawn “without prejudice”.

Who Won This Round Anyway?

Some people have interpreted the settlement almost as though it was Microsoft’s loss. Could Microsoft have backed off because of bad publicity and the involvement of the OIN?

Microsoft appears to have backed off from a wider confrontation with the free and open source software community by settling the alleged patent infringement case that it filed against GPS device maker TomTom last month.

[...]

It is a measure of Microsoft’s diminishing clout in the technology industry that it has had to settle with a tiny company like TomTom. In earlier years, it would have gone for the throat and ensured that an opponent as small as TomTom was shut down.

This will surely encourage smaller software makers and other companies which are targeted by Redmond to feel that they can make a stand and force a settlement.

Here is the statement from TomTom.

TomTom director of IP strategy and transaction Peter Spours wasn’t quite so verbose. “This agreement puts an end to the litigation between our two companies,” he said in his own canned statement. “It is drafted in a way that ensures TomTom’s full compliance with its obligations under the GPLv2, and thus reaffirms our commitment to the open source community.”

Microsoft sued TomTom in late February in U.S. District Court for the Western District of Washington and before the International Trade Commission (ITC), claiming that the Dutch GPS manufacturer was infringing on eight Redmond patents but refused to sit down for licensing talks.

Regarding TomTom, RBS wrote that the lawsuit has had limited impact on its financials. TomTom did get heaps of good publicity where it was portrayed as a benevolent victim, didn’t it?

TomTom and Microsoft settled their patent litigation affair. We believe the impact of the agreement does not impact TomTom’s financials, but till it is a relief this affair is no longer hanging over the shares.

Settling with Microsoft
Microsoft issued a press release, which effectively makes an end to the patent litigation affair between both companies. The cases have been settled through a patent agreement under which TomTom will ôpayö MSFT for coverage under the eight car navigation and file management system patents in the MSFT case. Meanwhile MSFT receives coverage under the four patents included in the TomTom countersuit. TomTom will seize to use functionality related to two file management system patents (the ôFAT LFN patentsö), in two years time. Financial obligations where not disclosed, however as TomTom did not release a press release themselves and as TomTom will remain compliant under the General Public License Version 2 (which forbids paying royalties or licence fees), we expect the impact of this deal on TomTom’s financials to be limited if not absent.

Asay says that the “TomTom suit suggests Microsoft’s still Microsoft.” This is no compliment and it is bad publicity for the monopolist. It started barking up the wrong tree, so more developers will keep their distance from Windows.

Removing the FAT

Microsoft has a lot to lose here. It jeopardised its position as the de facto standard in many simple storage devices, thereby opening the door to Free file systems which are not as primitive and unreliable as FAT. Jim Zemlin from the Linux Foundation has already scolded Microsoft (which is rare) for its promises that it cannot keep and he also suggested phasing out FAT.

On the TomTom settlement: Microsoft Rolls Back its “Open” Promises

[...]

Yesterday, Microsoft announced with a formal press release a settlement of a nuisance patent case filed against a smaller company. Despite Microsoft’s protestations to the contrary, the press release makes it clear that the motivation behind this case was the fear, uncertainty and doubt Microsoft hoped the suit would create around the use of Linux. Linux is, not coincidentally, one of Microsoft’s strongest threats in the server, embedded and desktop computing arenas as evidenced in recent remarks make by its CEO Steve Ballmer.

But the settlement of this suit only proves two things. First, the software patent system in the US needs reform. The need for reform stems from why common functionality like this (which is neither innovative nor novel) was granted a patent in the first place.

Second, it proves that, even apart from this larger issue, this case is a non-event. The technology at the heart of this settlement is the FAT filesystem. As acknowledged by Microsoft in the press release, this file system is easily replaced with multiple technology alternatives. The Linux Foundation is here to assist interested parties in the technical coordination of removing the FAT filesystem from products that make use of it today.

Sam Dean agrees and writes:

I have no doubt that absent federated opposition to Microsoft’s position in this legal battle, and the substantial amount of attention this case got in the mainstream press and the blogosphere, the case would have become much messier. It was all getting to be bad PR for Microsoft. The Linux Foundation, the Open Invention Network, the Software Freedom Law Center and many other organizations are getting better every day at protecting open standards and the rights of Linux project leaders and commercial companies.

This was also covered by Dana Blankenhorn and Ryan Paul, who summarised thusly:

Linux Foundation executive director Jim Zemlin says that Microsoft is hostile to open technologies and that product makers should ditch the company’s patent-encumbered FAT filesystem.

More coverage of this can be found in:

  1. Linux chief calls for FAT-free Microsoft diet
  2. Linux geek calls for death of FAT
  3. Linux foundation chew the FAT. – Gadget news and reviews
  4. The Linux Foundation: It’s Time for a Microsoft FAT Diet

That concludes this latest chapter in the FAT case. It may be over for TomTom, but not for FAT. The fight is still on as Microsoft is approaching debt [1, 2, 3, 4, 5] and looking for new business models that artificially elevate the price of competitors and thus not only generate new revenue streams but also make the competition less attractive. For Microsoft to elect this last strategic resort is a sign of weakness, not strength. Microsoft should have learned from Unisys, as Jason Perlow put it (“Microsoft: Litigate on FAT, and you’ll be the next Unisys”).

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

A Single Comment

  1. twitter said,

    April 4, 2009 at 8:48 am

    Gravatar

    If nothing else, this case destroys all of the software patent propaganda. Software patents did not protect TomTom and won’t ever protect inventors or small business. M$ used their lately drafted and completely bogus FAT patents to threaten TomTom with obliteration and walked away with a settlement that grants them everything TomTom had. In theory, M$ can make a clone of TomTom’s GPS and dump it onto the market without fear. The next time someone tells you that “software patents protect the little guy,” ask them what good software patents did TomTom.

    Sadly, M$ is more about extortion and control than it is about making anything useful. Business method and software patents are so hopelessly vague, TomTom’s GPS specific patents are sure to step all over those of other GPS companies. When M$ extorts fees other GPS makers, they will have TomTom’s patents in their back pocket to wave against countersuits. Five years from now, if M$ is still around, the agreement is over and M$ will be able to demand TomTom’s tithe. M$’s goal is to be able to charge people rent for free software and punish anyone that does not obey. In this way they would remain the “center of personal computing,” It’s blatantly anti-competitive and a clear admission of their own software’s second rate nature. M$ and other vendors have always depended on the vast productivity of the free software world, these lawsuits make their parasitic relationship obvious.

    It will be difficult to find any business large enough to own software patents that’s brave enough to fight M$’s dying but still obnoxious FUD machine. Despite their apparent worthlessness, patents of any kind are expensive. It practically takes a public company to afford the wasteful process of owning patents and public companies are easily wounded by M$ spin about “weakness.” A kind of heroism is needed to eliminate business method and software patents once and for all, but it will be difficult to find in a company that has invested into the broken system.

What Else is New


  1. Links 17/1/2017: GIMP Plans, New Raspberry Pi Product

    Links for the day



  2. Resumption of EPO Propaganda ('Meet the President') Officially Starts Tomorrow

    Yet another one of these foolish 'Meet the President' stunts, scheduled to take place tomorrow morning



  3. Caricature: Battistelli's New Year's Resolution (More EPO Lies)

    The latest cartoon being circulated within the European Patent Office (EPO)



  4. Donald Trump Gives New Hope to Patent Aggressors and Patent Trolls

    Pessimism about the prospects of patent progress or patent reform in an age of staunchly pro-business Conservatives and glorification of protectionism



  5. More Fake News About the Unified Patent Court (UPC) Based on Lobbying Tactics From Bristows UPC and the Preparatory Committee

    Unified Patent Court (UPC) lobbying has gotten so bad that it now infiltrates general media outlets, where people are asked to just blindly assume that the UPC is coming and is inevitable, even though it's clearly in a limbo and is unlikely to see the light of day



  6. EPO Totally Silent for a Month, But Deep Inside There Are Serious Cracks

    The situation at the EPO seems to be pretty grim, even at the top-level management, and the EPO has gone into permanent silence mode



  7. Links 16/1/2017: Linux 4.10 RC4, Linux Mint 18.1 'Serena' KDE Edition Beta

    Links for the day



  8. 'Financial Director' Publishes Fake News About the Unitary Patent (UPC)

    Response to some of the latest UPC propaganda, which strives to misinform Financial Directors so as to enrich the author and his firm



  9. Independent and Untainted Web Sites About Patents Are Still Few and Rare

    Commentary about news sources that we rely on, as well as the known pitfalls or the vested interests deeply ingrained in them



  10. The 20% Rule: Patent Trolling Suffers Double-Digit Declines and Patent Troll Technicolor is Collapsing

    Significant demise or total catastrophe for the modus operandi (method) of going after companies with a pile of patents and threats of litigation



  11. US Supreme Court Did Not End Apple's Patent Disputes Over Android (Linux), More Cases Imminent

    An overview of some very recent news regarding the highest court in the United States, which has been dealing with cases that can determine the fate of Free/Open Source software in an age of patent uncertainty and patent thickets surrounding mobility



  12. Links 15/1/2017: Switching From OS X to GNU/Linux, Debian 8.7 Released

    Links for the day



  13. Number of New Patent Cases in the US Fell 25% Last Year, Thanks in Part to the Demise of Software Patent Trolls

    Litigation and prosecutions that rely on patents (failure to resolve disputes, e.g. by sharing ideas, out of court) is down very sharply, in part because firms that make nothing at all (just threaten and/or litigate) have been sinking after much-needed reform



  14. America Invents Act Improved Patent Quality, But Right Wingers Threaten to Make It Worse Again

    The past half a decade saw gradual improvement in assessment of patents in the United States, but there is a growing threat and pressure from the patent microcosm to restore patent maximalism and chaos



  15. PTAB -- Not Deterred by Courts -- Continues to Invalidate a Lot of Software Patents

    The Patent Trial and Appeal Board (PTAB) continues to make progress reforming the patent system by eliminating a lot of patents and setting an example (or new standards) for what is patent-eligible after Alice



  16. EPO Abuses Come Under Fire From Politicians in Luxembourg

    Luxembourg is the latest nation in which concerns about the EPO's serious abuses are brought up not only by the media but also by politicians



  17. Constitutionality as a Barrier and Brexit Barriers to UPC Keep the Whole Pipe Dream Deadlocked

    The UPC is still going nowhere fast, but the demise (or death) of the UPC as we know it must not be taken for granted



  18. Links 14/1/2017: Wine 2.0 RC5 and AryaLinux 2017 Released

    Links for the day



  19. Links 13/1/2017: Linux 4.9.3 and Linux 4.4.42

    Links for the day



  20. Brexit Means No UPC (Unified Patent Court)

    Now that Jo Johnson, Boris Johnson's brother, is officially declared the new minister for intellectual property in the UK everything that Lucy Neville-Rolfe wrote is as solid as paper bag on a rainy London day



  21. Patent Trolls and Software Patents: CloudTrade, Patent Practitioners Density, and Via Licensing

    Software patents armament from a British company, charted concentration of the patent microcosm in the United States, and US-leaning patent trolls that prey on China



  22. Patent Maximalism -- Like Copyright Maximalism -- Relies on Misconceptions and Mass Deception

    The latest examples of discussions about patent scope, courtesy of those looking to benefit financially by pushing such monopolies to the max



  23. Software Patents Still Promoted by IBM and Its Lobbyist (and Former Employee) David Kappos, in Defiance of Much-Needed US Patent Reform

    While the corporate media celebrates IBM as though it's some kind of 'champion' for hoarding patents that it then uses to attack companies which actually grow



  24. Brexit/Trump Effect: Patent Systems With Institutional Corruption and Nepotism

    Rumours about Britain's head of patents (and copyrights etc.) being the brother of the Brexit campaigner and Foreign Minister; meanwhile, on the other side of the Atlantic, rumours suggest that the corrupt judge Rader might be the next head of patents in the United States



  25. Links 11/1/2017: X.Org Server 1.19.1, GitHub's Atom 1.13

    Links for the day



  26. The Patent Microcosm is Already Sucking up to Donald Trump in an Effort to Enrich Itself at Everyone's Expense

    Four new examples of patent maximalists embracing/adopting the pseudo-populist slogan to advance their goals of increasing litigation (which they profit from) and undermining PTAB (which made patents great in the quality sense)



  27. Patent Quality in the United States Can Only be Assessed at the Patent Trial and Appeal Board (PTAB) and the Courts

    The travesty of patent offices in the US and China, where the goal or the accomplishment is measured in terms of the number of patents rather than their quality



  28. Gradual Collapse of Microsoft's Extensive (and External) Patent Trolling Operations

    The President of Microsoft Technology Licensing LLC (patent troll) leaves and the founder of Intellectual Ventures, Microsoft's largest peripheral patent troll, joins Sherpa Technology



  29. No End to Battistelli's Witch-hunts Against the Media, Against Staff, and Against Politicians

    Rumours about the fate of people who are (or have been) criticising Battistelli's reign of terror at the EPO



  30. Links 10/1/2017: Synfig 1.2, Kodachi Linux 3.7

    Links for the day


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