Beyond Binary

REDMOND, Wash.--Microsoft's top intellectual property lawyer said that the company's legal action against TomTom over Linux was specific to that company, but he declined to say whether other suits over the open source operating system might follow.

"I wouldn't speculate at this point," Horacio Gutierrez told CNET News in an interview late Wednesday. Gutierrez did add that Microsoft's patent suit against TomTom, which includes three claims related to file management techniques used in the Linux kernel, was specific to that company.

It is the "TomTom implementation of the Linux kernel that infringes these claims," Gutierrez said. "There are many flavors of Linux (and) many implementations of the Linux kernel. Cases such as these are very fact-specific."

Microsoft filed complaints in federal court and with the International Trade Commission on Wednesday alleging eight counts of patent infringement by TomTom. While five of the patents relate to car navigation systems specifically, three of the claims pertain to TomTom's use of the Linux kernel in its products, Gutierrez said.

Gutierrez said Microsoft chose to include the open source claims alongside the proprietary GPS system claims because both related to TomTom. He characterized the suit as a dispute with TomTom as opposed to a new salvo against Linux.

"This is just a normal course-of-business dispute between two companies," he said, adding that no special thought was given to what it meant to include the Linux claims in the suit.

"That is not the focal point of the action," he said.

Asked whether that meant that Microsoft would seek compensation from all products that use the Linux kernel, Gutierrez said, "No. That is really not what we have in mind. This case is about TomTom's infringement."

He stressed Microsoft's preference for signing licensing deals with companies, including those using Linux.

"Our position is and has been that we believe licensing is the right way to approach and resolve these things," he said.

Gutierrez said that the move did not reflect a change in Microsoft's overall position toward open-source software. "I think there shouldn't be any ambiguity on our expectations as a company. We recognize that open-source software will continue to be a part of the industry."

But, he said that the company's "appreciation and respect for the open-source community is not inconsistent" with its desire to protect its intellectual property.

That said, he acknowledged the suit could hurt some of the efforts the company has tried to make in recent years to mend fences with the Linux world.

Sometimes, he said, disputes will lead to lawsuits. "Sometimes they will evoke hard feelings. Sometimes those feelings will make moving ahead with our open-source strategy more challenging, but there is no change to our open-source strategy and the work many teams across Microsoft do every day to move it forward."

Although Microsoft did not call out the Linux claims, Gutierrez said the company was not trying to hide them. While Linux is not mentioned in the federal lawsuit, he said, they are noted in two paragraphs of the ITC claim.

Microsoft has licensed its technical know-how to nearly every company, including rivals such as Apple and Nokia.

Now Redmond can add Google to the list. To help power the Google Sync product that was announced on Monday, the search giant has licensed Microsoft's ActiveSync protocol for sharing information between a server and mobile phone.

Google Sync allows users to synchronize their contacts, and in some cases calendar information, with Google's Web-based services. It works with a range of phones including Windows Mobile phones, Apple's iPhone, RIM's BlackBerry, and phones from Nokia and Sony Ericsson.

Generally, companies have licensed the ActiveSync protocol to link data between a cell phone and a Microsoft Exchange server. In this case, though, Google is using ActiveSync to link Google data off of their servers to mobile phones.

Although Google and Microsoft have cooperated in some areas in the past, the deal on Monday is the first announced example of one of those companies licensing the other's intellectual property, according to Microsoft.

Horacio Gutierrez, Microsoft's top intellectual property lawyer touted the move.

"Google's licensing of these Microsoft patents relating to the Microsoft Exchange ActiveSync protocol is a clear (acknowledgment) of the innovation taking place at Microsoft," Gutierrez said in a statement. "This agreement is also a great example of Microsoft's openness to generally license our patents under fair and reasonable terms so long as licensees respect Microsoft intellectual property."

Gutierrez noted that the company has struck more than 500 licensing deals since it began its intellectual property-sharing push in 2003.

So, by my count, that leaves Oracle and Red Hat among big name technology companies that don't have some sort of pact with Microsoft. Anyone else have another prominent name I should add to that list?

Update, 2:05 p.m. PT: I thought it was worth checking to see if the deal between Google and Microsoft was broad enough to cover Exchange synchronizing to an Android device. "Android is not covered by this agreement," a Microsoft representative told CNET News.

In case you were wondering, Microsoft thinks the battle of open source vs. proprietary software is basically over.

"Today, but increasingly in the future, we are all going to be 'mixed source'," Microsoft's top intellectual property lawyer said in a lunchtime interview on Thursday. To bolster his claim, Horacio Gutierrez notes Microsoft is releasing plenty of stuff as open source, while open-source companies like Red Hat often license commercial software alongside their open-source products. "I actually think the war between proprietary and open source is a thing of the past," he said.

Gutierrez: If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected.

(Credit: Microsoft)

That doesn't mean Microsoft is ready to sing Kumbaya with Red Hat, or other companies that haven't made an IP deal with Redmond. While Microsoft is patient, Gutierrez indicated that Microsoft's patience is not unlimited.

"If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected," he said.

Microsoft has, on a number of occasions, asserted that Linux violates a ton of Microsoft patents, but Microsoft has never sued a company over those claims.

Gutierrez said he would like to keep that record intact, noting that the Novell deal, in particular, is an example of how working with a rival can ultimately benefit both companies.

It's generally thought that if you want to kill a good technical discussion, just bring in the lawyers.

But Gutierrez notes that it's often the complete opposite. In fact, he credits Microsoft's stepped-up licensing efforts that began five years ago for having helped the company find a way to talk to rivals that it had shunned in the past.

"It is truly a business mechanism to start discussions that weren't possible before," he said.

He notes that before software patents were in widespread use, companies were reluctant to share any technical details, jealously guarding all their know-how as trade secrets--another form of intellectual property protection that largely requires information to be kept confidential.

Patents remain a double-edged sword for Microsoft, however. Gutierrez said the company is defending about 50 patent cases at the moment--half of all the company's litigation docket.

While some are high-profile cases such as the disputes with Alcatel-Lucent, most are with companies that don't actually make goods related to the patents they hold.

In an effort to help head off patent disputes, Microsoft is an investor in Nathan Myrhvold's patent-buying Intellectual Ventures effort and has also made deals with several other such patent companies. "We've done deals with a number of others," Gutierrez said.

On the positive side, though, are deals like the Novell one, Gutierrez said. In the end, Novell has grown its business, Microsoft got added revenue and customers end up with products that work better together. Gutierrez wouldn't name names, but he said to expect more deals along the lines of the ones Microsoft struck with Novell and Sun Microsystems.

"We have tasted the opportunity to put IP to work in a very constructive way that leads to better products and more satisfied customers," he said.