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:

• TomTom sues Microsoft on patent infringement



• TomTom Countersues Microsoft In US Over Alleged Patent Breach



• "TomTom sues Microsoft



• TomTom Countersues: Linux And Microsoft Going To War (MSFT)



• "TomTom countersues Microsoft



• TomTom Countersues: Linux And Microsoft Going To War (MSFT)



• TomTom Countersues Microsoft for Patent Infringement



• TomTom chooses a moderate limited hang out route



• "They Started It!" -- TomTom Countersues Microsoft

• TomTom fires back with patent infringement suit against Microsoft

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.

• TomTom Tells Microsoft To Get Lost

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.

• And Here Comes The Patent Nuclear War: TomTom Sues Microsoft Back For Infringement

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." ⬆