Bonum Certa Men Certa

Why Microsoft is Likely to Lose the TomTom Case (Plus Summary)

Come again? Software patents??

Windows and window
What do physical navigation devices
have to do with Windows?



THE TOMTOM STORY is a subject that we have already covered in:



It has been mentioned in one context or another since then [1, 2, 3, 4] because it serves as excellent proof that Microsoft is not interested in peace. We've studied many short articles about the news in order to get a better idea and share information in greater abundance. When Linus Torvalds expressed his concerns about software patents, he conveniently ignored the impact of patent deals such as Novell's. It might be time to rethink this.

“This happens to put in considerable doubt the high number of software patents it once cited (over 200)...”Our belief is that TomTom is likely to be one company among several more that were quietly pressured to pay Microsoft for software patents and we base this assumption on some prior cases such as Brother's [1, 2]. That said, there is a history of confrontations involving TomTom and Microsoft, going several years back. It's about royalties, which represent a change of direction at Microsoft. TomTom, unlike others, refused to allow these royalties to elevate the price of its products, but this time, like in the Primax case [1, 2], it saw Microsoft resorting to offensive action. In both the Primax case and the TomTom case, an embargo threat was/is being used as means of extortion/financial strangulation. It comes at a very unfortunate time for TomTom, which revealed financial difficulties only days ago (thus inability to endure heavy legal action). Primax was about hardware, whereas TomTom is the first case where Microsoft uses software patents offensively; additionally -- for this particular case at least -- it identified only a few software patents that involve Linux. This happens to put in considerable doubt the high number of software patents it once cited (over 200) and it also has serious ramifications when it comes to interoperability because FAT patents are an example of something that covers methods -- not implementation -- of something which is vital for enabling Linux to work with other environments, mostly due to ubiquity and complacence. One can describe this as patent ambush, which received some legitimacy after the Rambus case that was concluded only days ago.

It's worth adding that the small number of patents used against Linux indicates that:

  1. Microsoft is not sure if more than just a few software patents would be valid in fighting Linux (i.e. can't be successfully reexamined and invalidated for triviality/prior art).


  2. Microsoft chooses software patents which are hard to work around. It shows that any intents of interoperability are hinged on software patents and are therefore half hearted.


To put it another way, in the words of an IDG reporter:

Microsoft has been vocal about its interest in working more closely with the open-source community in the past couple of years, actively promoting interoperability, forging new relationships and donating code to open-source projects. But the patent-infringement suit it filed Wednesday against TomTom has the Linux community, in particular, concerned that Microsoft is only paying lip service to its new approach and plans to continue to threaten Linux distributors with patent-infringement claims.


"Note also that this FAT patent seems to be only granted in FR, DE and UK," suggests one of our sources. In addition, we have the following old report to serve as 'ammunition':

Federal Patent Court declares FAT patent of Microsoft null and void



The Federal Patent Court has declared a Microsoft patent on the file allocation system File Allocation Table (FAT) invalid for the Federal Republic of Germany. The claim in question is the protection claim granted by the European Patent Office under EP 0618540 for a "common namespace for long and short filenames." This in turn is based on the US patent No. 5,758,352. At the German Patent and Trade Mark Office (GPTO) the patent is protected under DE 69429378. According to a recently published decision (PDF file) by the 2nd Division of the Federal Patent Court bearing the file number: 2Ni 2/05 (EU) and dated October 26, 2006 the claims made are "not based on inventive activity."


Based on Microsoft's FAT specifications, there is actually a promise not to sue. From the company's own Web site (2000):

The FAT (File Allocation Table) file system has its origins in the late 1970s and early 1980s and was the file system supported by the Microsoft MS-DOS operating system. It was originally developed as a simple file system suitable for floppy disk drives less than 500K in size. Over time it has been enhanced to support larger and larger media. Currently there are three FAT file system types: FAT12, FAT16 and FAT32. The basic difference in these FAT sub types, and the reason for the names, is the size, in bits, of the entries in the actual FAT structure on the disk. There are 12 bits in a FAT12 FAT entry, 16 bits in a FAT16 FAT entry and 32 bits in a FAT32 FAT entry.

[...]

1. LIMITED LICENSE AND COVENANT NOT TO SUE.

(a) Provided that you comply with all terms and conditions of this Agreement and subject to the limitations in Sections 1(c) - (f) below, Microsoft grants to you the following non-exclusive, worldwide, royalty-free, non-transferable, non-sublicenseable license under any copyrights owned or licensable by Microsoft without payment of consideration to unaffiliated third parties, to reproduce the Specification solely for the purposes of creating portions of products which comply with the Specification in unmodified form.

(b) Provided that you comply with all terms and conditions of this Agreement and subject to the limitations in Sections 1(c) - (f) below, Microsoft grants to you the following non-exclusive, worldwide, royalty-free, non-transferable, non-sublicenseable, reciprocal limited covenant not to sue under its Necessary Claims solely to make, have made, use, import, and directly and indirectly, offer to sell, sell and otherwise distribute and dispose of portions of products which comply with the Specification in unmodified form. For purposes of sections (a) and (b) above, the Specification is “unmodified” if there are no changes, additions or extensions to the Specification, and “Necessary Claims” means claims of a patent or patent application which are (1) owned or licenseable by Microsoft without payment of consideration to an unaffiliated third party; and (2) have an effective filing date on or before December 31, 2010, that must be infringed in order to make a portion(s) of a product that complies with the Specification. Necessary Claims does not include claims relating to semiconductor manufacturing technology or microprocessor circuits or claims not required to be infringed in complying with the Specification (even if in the same patent as Necessary Claims).

(c) The foregoing covenant not to sue shall not extend to any part or function of a product which (i) is not required to comply with the Specification in unmodified form, or (ii) to which there was a commercially reasonable alternative to infringing a Necessary Claim. (d) Each of the license and the covenant not to sue described above shall be unavailable to you and shall terminate immediately if you or any of your Affiliates (collectively “Covenantee Party”) “Initiates” any action for patent infringement against: (x) Microsoft or any of its Affiliates (collectively “Granting Party”), (y) any customers or distributors of the Granting Party, or other recipients of a covenant not to sue with respect to the Specification from the Granting Party (“Covenantees”); or (z) any customers or distributors of Covenantees (all parties identified in (y) and (z) collectively referred to as “Customers”), which action is based on a conformant implementation of the Specification. As used herein, “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party; and control shall mean the power, whether direct or indirect, to direct or cause the direction of the management or policies of any entity whether through the ownership of voting securities, by contract or otherwise. “Initiates” means that a Covenantee Party is the first (as between the Granting Party and the Covenantee Party) to file or institute any legal or administrative claim or action for patent infringement against the Granting Party or any of the Customers. “Initiates” includes any situation in which a Covenantee Party files or initiates a legal or administrative claim or action for patent infringement solely as a counterclaim or equivalent in response to a Granting Party first filing or instituting a legal or administrative patent infringement claim against such Covenantee Party.

(e) Each of the license and the covenant not to sue described above shall not extend to your use of any portion of the Specification for any purpose other than (a) to create portions of an operating system (i) only as necessary to adapt such operating system so that it can directly interact with a firmware implementation of the Extensible Firmware Initiative Specification v. 1.0 (“EFI Specification”); (ii) only as necessary to emulate an implementation of the EFI Specification; and (b) to create firmware, applications, utilities and/or drivers that will be used and/or licensed for only the following purposes: (i) to install, repair and maintain hardware, firmware and portions of operating system software which are utilized in the boot process; (ii) to provide to an operating system runtime services that are specified in the EFI Specification; (iii) to diagnose and correct failures in the hardware, firmware or operating system software; (iv) to query for identification of a computer system (whether by serial numbers, asset tags, user or otherwise); (v) to perform inventory of a computer system; and (vi) to manufacture, install and setup any hardware, firmware or operating system software.

(f) Microsoft reserves all other rights it may have in the Specification and any intellectual property therein. The furnishing of this document does not give you any license or covenant not to sue with respect to any other Microsoft patents, trademarks, copyrights or other intellectual property rights.


Groklaw is waving the Bilski ruling [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] as the reason why Microsoft's case is bound to meet failure (assuming it's fought to the end rather than cowardly settled).

I'll restrict myself for now to two quick words:

Think Bilski

Are Microsoft's FAT patents *hardware* patents? No? Then what makes you assume they are valid in the post-Bilski world? Don't even get me started on obviousness. Let alone who really "invented" that stuff.


The End Software Patents initiative uses the Bilski defense as well.

Yesterday, Microsoft attacked free software and GNU/Linux users with software patent claims against the Tom Tom Navigator and its implementation of the FAT file system. But do they have a sword or a wet rag? 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 legitimacy of these patents is questioned thusly:

Scroll down to page 6 and take a look at the title of the patent there: “Vehicle Computer System with Wireless Internet Connectivity.”

No joke. Microsoft has patented being able to have a wi-fi capable computer in your car.

Let me repeat: wi-fi + computer + car = patent infringement.

This illustrates pretty well why software patents are pretty clearly bogus — how can patent have a wireless computer in a car? How is that unique idea?


Steve Lake calls almost for apathy. There is nothing to fear, he argues.

Yes, Microsoft has a controversial patent on the FAT file system (one I'm still waiting for someone to come up with some prior art so it can be overthrown) out there, and yes, they're suing Tom Tom on that basis. But this really isn't a lawsuit to fear.


Eric Raymond had a go at it also (which is rare these days).

FAT is no longer essential technology for anybody. It’s an easy, lowest-common-denominator option for device makers, but there’s nothing about it that’s essential to the functioning of a GPS or any other device. File systems for devices at that small a scale aren’t hard to write; there are quite a few available in open source already.

One of the risks Microsoft takes with this move is that the consumer electronics industry will get off its butt and standardize on something open - the flash-memory and thumb-drive manufactures, in particular, have huge business incentives to drive this move if they think Microsoft might target them or their customers.


Larry Augustin shares a similar opinion:

Linux, Microsoft and Patents: It's Time to Get the FAT Out



[...]

Yet in spite of this the industry has continued down a path where FAT has become the default filesystem of choice in much digital media. Amazon Kindle uses FAT. Google Android uses FAT. Virtually every digital camera uses FAT.

Rather than continue to delude ourselves that this technology is open and unencumbered it's time for the industry to "Get the FAT Out" and aggressively move to a truly open and unencumbered industry standard filesystem format. There are several to choose from: pick your favorite Linux filesystem such as ext2 for example. Ext2 is arguably technically superior to FAT as well. Plus it's open source. The software is already available under an open source license.


Indeed, Microsoft might be trying to scare or to tax some other rivals in other areas. "One of the issues I see is that Microsoft benefited from allowing FAT storage for transfer of data between digital recording devices (e.g. cameras) and computers. Having done that, they want to cash in, using their desktop monopoly," argues one of our readers, am. He believes that Microsoft wants to establish a revenue stream from devices (where Windows is failing) and wonders "what it would be like if Microsoft was forced to support a Free file system format that allowed files to be added/removed (ie not just iso9660 cd-rom)."

The Inquirer chose a mystifying new headline that stated: "Microsoft says it will sue whoever it pleases"

MICROSOFT MAY or may not sue other open source operating systems, the firm's head intellectual property lawyer has said, speaking after the Vole filed suit against navigation system maker, TomTom, over the use of a Linux kernel.


Over at Ars Technica, memories were brought back of the can of worms which is FAT.

Microsoft has filed a patent infringement lawsuit against TomTom alleging that the device maker's products, including some that are Linux-based, infringe on patents related to Microsoft's FAT32 filesystem. This marks the first time that Microsoft has enforced its FAT patents against the Linux platform, a move that some free software advocates have long feared could be disastrous.

[...]

Microsoft's FAT patents have been vigorously challenged in court, but were finally upheld in 2006. Eben Moglen—a Columbia University law professor and the chairman of the Software Freedom Law Center—once described the FAT patents as a "proverbial Sword of Damocles hanging over the open source community" and warned that Microsoft could use them to do immense damage to the Linux platform. Indeed, Microsoft's filesystem format is used broadly on external storage devices such as camera memory cards.


Additional early reports:



Jim Zemlin from the Linux Foundation had a decent post calling for people -- developers and companies being the likely audience -- to calm down. Heise covered this also.

Linux Foundation Executive Director Jim Zemlin said in his blog yesterday (26th February) that the Microsoft patent infringement suite against TomTom, at least at present, does not appear to be a covert attack on Linux. Microsoft have made assurances that their dispute is solely with TomTom and Zemlin says there is no reason to doubt that is the case, or to suspect a move against the Linux ecosystem.


More coverage includes:



As seen above, some publications characterise it as a lawsuit against TomTom, whereas others call it a lawsuit against Linux. Either way, this seems like the first time that Microsoft gets aggressive using software patents. To be more accurate, this is the first time that Microsoft resorts to proactive attacks using patents as applied to software. The lawsuit even targets a European company, which puts Microsoft in murky legal waters.

Legal experts who are associated with GNU/Linux and/or Free software have expressed a level of concern (also published in here).

Despite Microsoft assurances that a patent lawsuit against GPS navigation company TomTom is not targeting the overall Linux community, open-source leaders said on Thursday that the legal action is antagonistic toward the movement.


This is indeed the first time such a lawsuit is launched against Linux (Microsoft attempts to deny that Linux is targeted).

Microsoft filed the patent suit over Linux in U.S. District Court in Seattle. It’s believed to be the first time Microsoft has filed a patent suit over Linux, after claiming for years that elements of the open-source operating system violate its patents.


A prominent former Microsoft employee (Walli) also deflected attention away from Linux.

Wired Magazine remembers the speech about the "Be Very Afraid" tour (video here).

Is this the first shot in the great Microsoft patent war against Linux we last heard rumblings of some two years ago? Is this the latest front in Microsoft's "Be Very Afraid" campaign?


On we move to considering further coverage, namely:



A Linux-hostile writer from Information Week (with proven track record) changed his headline from "Microsoft Sues TomTom; Red Alert For Linux Backers" to "Microsoft Sues TomTom; Orange Alert For Linux Backers."

Paul Thurrott, another Linux-hostile Microsoft cheerleader, named this a "witch hunt".

Microsoft this week sued GPS maker TomTom for infringing on eight of its patents, three of which pertain to TomTom's use of the Linux kernel in its products. Open source backers immediately complained that the suit was the first salvo in Microsoft's long-expected Linux patent witch hunt.


Similar wording appeared in CRN: Microsoft: We're Not Launching Linux Patent Witch Hunt

On and on it goes:



There are many good comments in LinuxToday and Beranger has gotten many links accumulated too.

Microsoft's PR mouthpiece from CNET [1, 2] is plastering the Microsoft-sponsored/supported material, as usual (Microsoft does business with CNET). S/he does the usual Linux-hostile articles about the lawsuit (no less than 3 of them!):



This is only a small part of wider propaganda from Microsoft allies, who are passing new laws to prevent competition and then reinforce these new beliefs with advertising. It is appalling.

Remember how Microsoft feels about this industry:

"Intellectual property is the next software."

--Nathan Myhrvold, Microsoft patent troll



A rough translation of the above would be: "forget about making products, just make 'ideas'. Those who develop software (also proprietary software) will be floor scrubbers and those who really sell software are "thinkers" (or patent harvesters)."

As usual, the Microsoft PR from Ina Fried is mitigated somewhat by Matt Asay, who gives the 'non-Microsoft' side of the story in CNET.

Microsoft itself doesn't mention Linux by name. Microsoft declared this lawsuit in a press release, but Linux is just not there.

Simon Phipps (of Sun) writes: "This would explain the (now clearly hollow) charm offensive with the open source community."

Glyn Moody remarks: "In other words, Microsoft "respects and appreciates" open source until it actually starts to replace Microsoft's offerings, in which case the charming smile is replaced with the shark's grimace." Moody is referring directly to Microsoft's statement -- however silly it seems when the company attempts to sue Linux while at the same time defending the company's relationships with "open source".

The Linux Foundation and other organisations which are affiliated with IBM don't sit idly. There is initial talk about fighting back and assisting TomTom in this case.

Microsoft suit "provocative," legal eagle says



[...]

Bergelt said, "The OIN, Software Freedom Law Center, and the Linux Foundation are unified in our view that it is an act of provocation. The people concerned about patent issues around open source are firmly allied and prepared to support TomTom."


Well, IBM boasts a large patent portfolio (as unnecessary as it may be and ineffective against patent trolls), so there might be interesting moves ahead.

We've attempted to find out about disclosures from the 451 Group following this post and some older observations. What we received is the following statement: "The 451 Group derives its revenue from subscription relationships with vendors, end users, investors, consultants and miscellaneous other industry sectors. 451 Group does not do any custom consulting work. No single customer represents more than 3% of the 451's revenue.

"Here's a link with more background and information on our customers and business: http://www.the451group.com/about/overview.php

"I'm guessing you may have been hoping for a disclosure of customer names, but I would stress that those relationships involve not only 451 Group, but also the clients themselves. I sometimes hear the same thing from many vendors I talk to about customers, many of whom do not want their business, advisory or other strategic relationships to be public."

While a disclosure would do a lot to shed light on motives and interests, it is understandable that the 451 Group does not embrace transparency entirely and this occasionally works against them (e.g. when Microsoft echoes their studies word by word). Either way, regarding the TomTom case, the 451 Group received this lengthy response from Microsoft:

In response to my own query, the company offered this:

First, to answer your earlier question on how the suit with TomTom involves the Linux Operating System, three of the infringed patents read on the Linux kernel as implemented by TomTom. However, open source software is not the focal point of this action. The case against TomTom, a global commercial manufacturer and seller of proprietary embedded hardware devices, involves infringement of Microsoft patents by TomTom devices that employ both proprietary and open source code. It is not unusual for companies to develop products based on a mix of proprietary and open source code; like every other company, they must take responsibility for ensuring that their systems do not infringe others’ patents. Licensing agreements are a useful means for ensuring mutual respect for IP and in fact, Microsoft has licensing agreements in place with many companies that run mixed source environments.

To be clear, this legal action is specific to TomTom’s implementation of the Linux kernel. Other companies that utilize Microsoft patents have licensed, and Microsoft is asking TomTom to do the same. This suit is simply a normal course of business; in taking this action, Microsoft is doing what any other technology company would do when faced by another party that infringes its IP rights.

To provide a bit more context regarding your question related to open source software, Microsoft respects and appreciates the important role that open source software plays in the industry, and Microsoft respects and appreciate the passion and the great contribution that open source developers make in the industry. This appreciation and respect is not inconsistent with Microsoft’s respect for intellectual property rights. Partnership with all technology companies, including those that adopt a mixed source model, must be built on mutual respect for IP rights, rights that we all rely upon for driving innovation and opportunity. The bottom line is that all industry players must play by the same rules.



To a greater or lesser extent, this was echoed by Jones and Updegrove.

I first learned of Microsoft bringing suit against in-car navigation company TomTom NV when I got an email from a journalist asking for comment. He in turn, had gotten the news from Todd Bishop's Microsoft Blog. Why all the buzz? Because apparently several of the patent claims relate to TomTom's implementation of the Linux kernel - and while Microsoft has made noises publicly and threats privately for years alleging that Linux infringes multiple Microsoft patents, it has never actually brought a suit against a Linux implementer specifically alleging infringement by the Linux portion of their product.


To end this optimistically, Penguin Pete opines that this may symbolise Microsoft's loss of the Big Battle, rendering such lawsuits a miserable last resort.

Even notice that you can hardly use a computer anymore without being in somebody's cross-hairs? Somebody, somewhere, is always out to get you. All we want to do is use these clever devices they keep making for us to buy, and be happy and not bother anybody. But somebody out there apparently didn't learn how to play nice with others.

There's the SCO attack against Linux. It drags on still. It's been set back so many times, any sane entity would have given up by now. But it won't end until the very last possible penny.

[...]

So now we have Microsoft's thrown gauntlet against Linux, in the suit against Tom-Tom. As Slashdot commenters are quick to point out, the nature of the lawsuit, revolving around use of the FAT file-system, is anti-competitive on the part of Microsoft, the convicted monopolist.


It was also reassuring to find Boycott Novell mentioned on this topic in the mainstream press.

Microsoft's lawsuit against Linux-based technology vendor TomTom over alleged patent violations could signal a more aggressive stance by the software giant over intellectual property issues -- or it could be just an isolated case involving a dispute with one vendor.


There are other publications where we were cited on this.

Looking forward, TomTom is definitely fighting this one. It is determined to win, which is great news that may actually increase confidence in the use of Linux (better to "get the cat out of the bag" and "shave it in one of many ways," to borrow a couple of famous sayings).



Good luck, TomTom.

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