A Linux advocacy group on Tuesday said it is publicly seeking invention data that could help overturn three Microsoft patents that the software maker has charged are infringed by some implementations of the Linux kernel.
The Open Invention Network said it is looking for examples of so-called prior art that could help invalidate three file management patents that Microsoft used in its suit against GPS maker TomTom. Although TomTom and Microsoft settled, the suit raised the specter that Microsoft might pursue other Linux-related companies.
OIN encouraged those with examples of earlier work in the areas covered by Microsoft's patents to submit them via the Web.
"The patent vetting activity offered by the Linux Defenders portal offers a unique opportunity to bring to bear the collective knowledge, passion and ingenuity of the Linux community to better explore the validity of the patents that were the subject of the recent action against TomTom," said Keith Bergelt, CEO of Open Invention Network, in a statement. "I encourage active participation from the entire Linux community so that other companies seeking to advance Linux strategies can be better informed about the quality of these patents."
In a statement, Microsoft deputy general counsel Horacio Gutierrez said that the three patents in question "represent valuable technology innovations that increase the efficiency and functionality of file management systems."
"They have been validated through licensing agreements and highly scrutinized for validity by patent offices," Gutierrez said, adding that two of the patents relating to the File Allocation Table naming methods have been affirmed twice by the federal Patent Office and have been licensed to more than 18 companies. The third patent, with relates to how file systems work better with flash memory, has also been licensed to other companies, Microsoft said.
Red Hat, meanwhile, praised the move to try to invalidate Microsoft's patents.
"Red Hat is pleased to endorse the growing movement within the free and open-source community of gathering prior art to undermine invalid software patents," Red Hat's legal team said in a blog posting. "We're particularly pleased that Open Invention Network's Linux Defenders has now invited scrutiny of the three patents that Microsoft used in the TomTom case to attack open source, as numerous public reports suggest weaknesses in these patents."
The blog notes that Microsoft said its suit was specific to TomTom, but also notes that when asked in a CNET interview, Gutierrez refused to rule out further legal actions against Linux-related companies.
"If Microsoft's objective was to build trust and confidence with the open-source community, it failed miserably," Red Hat said. "It is unfortunate when a technology company decides that, instead of simply competing on a level playing field in the marketplace, it will devote its entrepreneurial energy to the patent protection racket."
TomTom, the GPS maker being sued by Microsoft, has joined a collective of companies that have pooled their patents in an effort to help defend open-source software against legal threats.
In a press release on Monday, the Open Invention Network said that TomTom had joined its ranks. The collective aims to create a "supportive and shielded ecosystem to ensure the growth and adoption of Linux" and has amassed a pool of 275 pending and issued patents.
"Linux plays an important role at TomTom as the core of all our portable navigation devices," Peter Spours, director of IP at TomTom, said in a statement. "We believe that by becoming an Open Invention Network licensee, we encourage Linux development and foster innovation in a technical community that benefits everyone."
Microsoft announced late last month that it was suing TomTom over a number of patents, including several related to TomTom's use of the Linux kernel. The suit marked the first time Microsoft has turned to the courts to enforce its long-held assertion that Linux infringes on Microsoft's patents.
Last week TomTom countersued Microsoft, saying the software maker violates some of TomTom's patents.
As for Open Invention Network, the effort was founded in 2005 by Red Hat, IBM, and others. Companies such as and have since joined.
Keith Bergelt, OIN's chief executive, has been critical of Microsoft's patent actions against TomTom and Linux.
"This indicates that they don't understand how to actually participate as a responsible member of the open-source or Linux community," he said of Microsoft, following its suit. "And their behavior is clearly antagonistic to Linux. It's unfortunate they decided to adopt this tact."
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