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Microsoft, TomTom settle, issues do notJay Lyman, March 30, 2009 @ 12:44 pm ET
Microsoft and TomTom announced a settlement to their patent dispute, and while part of me was gearing up for a SCO-like saga, it just didn’t materialize. Actually, this settlement is the real-world scenario that was probably most likely from the start. It may be the end of the matter from a legal perspective, but in the world of Linux and open source, Microsoft-TomTom and its issues will live on.
The settlement does not necessarily back up my earlier contention that the suit was not aimed at Linux and open source. Still, the fact that TomTom’s countersuit did not involve the patents relating to Linux might be considered further reinforcement that the heart of the matter was the vehicle navigation technology and Microsoft’s strategy there. There is no question this is a market where Microsoft competes vigorously with Linux, but as noted recently, it appears there is no slowdown in embedded Linux adoption, whether it’s in mobile devices and other consumer electronics, institutional and industrial use, government and military or other markets.
I also think it is interesting to look at Microsoft’s messaging, which reflects a more conciliatory, respectful approach to Linux and open source. Consider its most recent statements in the TomTom case to what the company was saying following its partnership with Novell, when there were both subtle and not-so-subtle insinuations and implications about Linux users needing patent protection. Compare the TomTom-era Microsoft with a legal team in Redmond that two years ago actually gave a number of patents supposedly infringed by Linux and other open source software.
Not with the TomTom case. We heard no vague warnings for enterprise Linux users, no numerical outline of supposed infringement issues, at least not against Linux or open source software. In fact, the change in Microsoft messaging continues all the way through to the statement on the TomTom settlement, where there is recognition of GPL licensing requirements:
The agreement includes patent coverage for Microsoft’s three file management systems patents provided in a manner that is fully compliant with TomTom’s obligations under the General Public License Version 2 (GPLv2).
However, the statement also tells us that in order to achieve settlement and GPL compliance, TomTom will actually drop FAT-patented parts of its products:
TomTom will remove from its products the functionality related to two file management system patents (the ‘FAT LFN patents’), which enables efficient naming, organizing, storing and accessing of file data. TomTom will remove this functionality within two years, and the agreement provides for coverage directly to TomTom’s end customers under these patents during that time.
This is sure to continue the warranted attention, concern and caution around these patents. The fact that Microsoft is passing patent protection to TomTom’s ‘end customers,’ similar to the scheme of the Microsost-Novell patent pact, will probably prompt the most objection from Linux and open source supporters focused on the broader implications.
There are those who want very much for Microsoft to specify the patents and the places where Linux supposedly infringes Windows or anything else. The thinking is that one, this might give the courts and patent review process a chance to rid the world of some troll bait. Two, if there are actual IP infringements, Linux kernel hackers will quickly and happily move away to something new, different and legitimate. Perhaps, as suggested by Larry Augustin, Linux and open source developers should use this as a lesson to be particularly cautious when dealing with software that leads back to the wrong patent holders, and there is wisdom in this. Still, I don’t think we will ever know specifically which or how many patents may be at issue in Linux, if there are any.
In the end, I would reiterate my point that Microsoft sued TomTom, not Linux or open source. Some commentors have been quick to point out that it is not theoretically possible for any company to sue Linux or open source. That’s exactly the point.
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