The Open Road

The more that Microsoft's patent lawsuit against (and subsequent settlement with) TomTom simmers in my consciousness, the more I want to boil.

I gave Microsoft the benefit of the doubt early on: I know a few of the Microsoft personnel involved in the case, and I think that they're wonderful people of integrity and intelligence.

They're also fiercely competitive, and it's becoming apparent to me that the TomTom lawsuit was designed to bludgeon one of Microsoft's biggest competitors, Linux; it was not any serious attempt to protect its intellectual property.

The Linux Foundation's Jim Zemlin captures my sentiments well:

In the last several days, Microsoft has shown that despite claims of acquiring a newly found respect for open principles and technology, developers should be cautious in believing promises made by this "new" Microsoft.

When it counts, it appears that Microsoft still actively seeks to undermine those technologies or standards that are truly open, especially when those technologies pose a significant threat to (its) business.

Microsoft can rightly complain that it's a prisoner of the same patent system that it wields as a cudgel. But I don't believe in using the legal system to give someone--anyone--the edge in a product-driven marketplace. If Microsoft has to compete with lawyers against Linux instead of with product line managers, it should simply pay out a massive dividend and close up shop.

Microsoft is a better company than this. Unfortunately, its recurring rash of legal cunning against open source is getting stale. I want to believe that Microsoft can change. As Zemlin suggests, however, perhaps this leopard really can't change its spots.

Microsoft is asking the world to judge it by its actions. That's what we're doing, and Microsoft loses that case.

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Microsoft and TomTom have settled their patent dispute, including claims related to the FAT file system and Linux. But the rest of the open-source world, which could be affected, isn't ready to lie down and accept Linux's possibly besmirched reputation.

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.

SFLC writes:

The settlement neither implies that Microsoft patents are valid nor that TomTom's products were or are infringing...The FAT file system 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 anticompetitive 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.

This is good news because I admit I read the settlement as an implication that TomTom caved. As ZDNet's Larry Dignan suggests, however, "the settlement doesn't seem to answer a lot." For Microsoft, this may well be a good thing: FUD (fear, uncertainty, and doubt) is as good as a court judgment against Linux.

This was Microsoft's tactic in its Novell patent deal. Every press release about interoperability included verbiage about patents and Linux. I talked with Novell's press team repeatedly during this time and was always told, "Microsoft insisted on including that language. We wanted to focus on interoperability, which is what customers actually care about."

Microsoft may or may not have been trying to sully Linux's reputation with the TomTom lawsuit, and this settlement doesn't clarify things at all. Fortunately, the SFLC is on the case. It's a more than ample counterbalance to Microsoft's worst intentions.

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TomTom, sued earlier by Microsoft for patent infringement related to GPS technology and TomTom's implementation of Microsoft's FAT, or file allocation table, technology in Linux, is fighting back. Unfortunately, its countersuit relates to four of its GPS patents that it claims Microsoft infringes, not the Linux patents that have the open-source community up in arms.

Neither side, in other words, is backing down. Despite my earlier concern that TomTom couldn't afford to fight Microsoft's allegations, it looks as if TomTom has found both the money and the will to fight.

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.

As The 451 Group's Jay Lyman notes, Microsoft's suit against TomTom really isn't about Linux or open source, but both are collateral damage. I don't believe that the TomTom lawsuit is the first salvo in a Microsoft-sponsored legal battle against Linux, as some claim.

It's a lawsuit, one that involves Linux, but which ultimately will only likely hurt Linux by not tackling it head-on. Instead of clarity, we're only likely to get cloudiness from the TomTom lawsuit. That's a pity.

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There are lots of reasons to believe that Microsoft isn't going after open source with its TomTom patent infringement suit and, as Rob Enderle points out, TomTom can hardly afford to defend itself, anyway:

TomTom, which hasn't exactly been an open source poster child, has a problem....Tom Tom really doesn't have the resources to defend against an IP infringement attack during what is likely to be an ugly revenue year. It recently warned that it probably won't be able to repay creditors -- it took a 989 million euro fourth-quarter loss -- and doesn't appear to have the money to pay anyone at the moment. (How it will rigorously defend itself against Microsoft with no money will be interesting to watch).

As Enderle points out, TomTom could be using the vociferous (and often anti-Microsoft) open-source community to fight a public relations battle for it, so that it won't have to engage in costly litigation. It won't work. The open-source community is smart enough to not allow itself to be someone else's pawn.

Ultimately, Microsoft is suing because it believes TomTom violates its patents, with the primary concern being TomTom's GPS patents, not those related to Linux. It's probably time for the open-source world to acknowledge that Microsoft has other priorities that don't involve killing open source, however much that may be part of some Microsoft veterans' strategic vision.

Follow me on Twitter at mjasay.

I woke up this morning to a special deal from Amazon.com on a TomTom GPS device. While its one-day, 33 percent discount almost certainly has nothing to do with Microsoft's announcement that it is suing TomTom for eight counts of patent infringement, the appearance of Amazon trying to clear its inventory of the TomTom One-S couldn't have better comic timing:

I don't want to prey upon TomTom's misfortunes, however. I'm going to be waiting for the "75 percent off" sale next week. :-)

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Last week, Microsoft promoted Horacio Gutierrez, formerly vice president of intellectual property, to corporate vice president. This week, Gutierrez polished his new business cards and sent them TomTom's way, with a patent infringement lawsuit.

As CNET News' Ina Fried reports, Microsoft on Wednesday launched a patent infringement lawsuit against TomTom, maker of GPS systems. TomTom, for its part, summarily rejects the claims and says it will "vigorously defend" itself. Lawsuits are filed all the time, but this one is of particular interest to the open-source community because it includes three claims of patent infringement related to Linux file management technologies.

Glyn Moody wonders whether Microsoft has taken the first step in an all-out patent offensive against Linux. After talking with Gutierrez earlier this week, I highly doubt that.

As Gutierrez told CNET News, Microsoft's lawsuit is very specific to how TomTom uses the Linux kernel: "(It's the) TomTom implementation of the Linux kernel that infringes these claims. There are many flavors of Linux (and) many implementations of the Linux kernel. Cases such as these are very fact-specific."

This hardly sounds like a sneaky launch of the spiffy new patent product line at Microsoft. It sounds more like what Gutierrez claims it is: "This is just a normal course-of-business dispute between two companies. (Linux) is not the focal point of the action." Ironically, it could have been obviated had Microsoft bought TomTom back in 2006, as it was then rumored to be interesting in doing.

For all the bluster in the open-source press right now, it's important to keep in mind that TomTom has been battling patent lawsuits for years, some of which may relate to its use of Linux. In 2005, its CEO said at the ICT2008 conference that TomTom spent more that year on patent litigation than on anything else combined. Microsoft's eight-part lawsuit is par for the TomTom course, it would seem.

This speaks ill of the patent minefield that awaits any technology company, a problem called out recently by Red Hat associate general counsel Rob Tiller. But it doesn't necessarily mean that Microsoft has declared war on Linux.

For Microsoft to do that credibly, it would have to go where Linux is strongest and has the highest earning potential: servers. There, Microsoft will encounter IBM and others with bigger patent portfolios than its own. Microsoft has shown little appetite for that fight.

It's also important to remember, as TechFlash reminds us, that Microsoft has never been a litigious company. While I despise the FUD that Microsoft has promulgated around open source and Linux, specifically, over the past few years, the reality is that Microsoft has sued only three times in its company history over patent claims.

This is not Microsoft's opening salvo in a war against open source. That "war" has been ongoing for years, has taken many forms, and seems to want to change open source's $0.00 price tag to something higher. Something, in other words, with which Microsoft can compete.

Even so, I think that Microsoft has resigned itself to coexistence with open source, even if it's not always a peaceful coexistence. On the same day that Microsoft announced the TomTom lawsuit, Microsoft Windows chief Bob Muglia also acknowledged that eventually, "almost all our product(s) will have open source in (them)." Microsoft has taken a reality check, and open source is part of reality.

But part of that reality will absolutely be infringement of Microsoft's patents, and Microsoft's own violation of Linux-related patents (held by IBM, Hewlett-Packard, and others). That's the patent minefield in which the software industry operates.

It's not a system I like, but let's not get carried away. The GPS community doesn't seem to be wringing its hands over the fact that most of the claims in Microsoft's case relate to TomTom's alleged infringement of Microsoft's GPS technologies.

Maybe we, in the open-source world, need to settle down a little. We have an allergic reaction to patent infringement suits--and for good reason--but one company-specific lawsuit does not a war campaign make.

This TomTom suit, in other words, may well be the opening shot in a broader battle, but for now, it's the action of a sniper, not a broad fusillade.

In some ways, we should be grateful for how Microsoft has carried itself in this TomTom infringement claim. There are no broad pronouncements of Linux violations, as in the past. There are no white papers being circulated, decrying open source as anti-American and cancerous. There is just a reasoned, FUD-free patent infringement claim.

It may turn out to be specious, but it's very welcome to see it made without the sound and fury of past Microsoft public pronouncements about open source.

Follow me on Twitter at mjasay.