One might have thought Microsoft was back rattling the patented software sabres against Linux and open source this week, reading some of the recent reports regarding Redmond’s patent infringement suit against automotive navigation and GPS player TomTom. However, upon further review, it seems that Microsoft is making a point to say that these suits are not aimed at the Linux OS or open source. 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.

The key phrase, which is repeated, is the suit involves ‘the Linux kernel as implemented by TomTom,’ which is very different from ‘the Linux kernel’ when we’re talking software code and patent infringement suits. While some usual suspicions are being raised, there are also some who generally agree this is not the first shot in a supposed war against Linux and open source.

Microsoft says the infringement case involves TomTom devices that use both proprietary and open source code (again, it is not that code, but TomTom’s implementation of it). Microsoft then goes on to explain the normalcy of mixing open source and proprietary software — true, particularly in embedded uses — and says ‘Microsoft respects and appreciates the important role that open source software plays in the industry … This appreciation and respect is not inconsistent with Microsoft’s respect for intellectual property rights.’ I would add that there is no mention of Linux or open source in some other reports on the matter, nor in Microsoft’s press release.

For those looking for signs that Microsoft has changed, I would hope this might serve as the proverbial coffee to wake up and smell. Microsoft is acknowledging the contributions and IP value of open source software and is going out of its way to make sure people don’t think it is making patent infringement claims over the actual Linux kernel. This certainly doesn’t mean that any kind of patent action or potential action, from anyone, against Linux or any other open source software is not a concern, but if anything, this suit seems to support the idea that Linux and other open source software should be viewed on the same level as proprietary software when it comes to IP validity and respect.