MSFT vs TomTom: The Q&A

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While it’s true that you hear it here last, generally, a week is a bit much, even for me. But as we’re still fielding questions about the news that Microsoft had filed a complaint over alleged infringed patents against TomTom, Dutch manufacturer of navigation systems, it seems necessary to comment. So in service of said need, please find below a Q&A exploring my current understanding of the complaint and the issues it raises.

Q: Before we continue, is there anything to disclose?
A: Yes indeed. Microsoft, the plaintiff in the case, is a RedMonk customer, while TomTom, the defendant, is not. Of the related commentary below, the Linux Foundation is also a RedMonk client. That should about cover it.

Q: Can you summarize the news for those that haven’t seen it yet?
A: Sure. TechFlash’s Todd Bishop does an excellent job of summarizing the news for you here:

Microsoft filed suit against TomTom [on February 25th], alleging that the in-car navigation company’s devices violate eight of its patents — including three that relate to TomTom’s implementation of the Linux kernel.

For the legally inclined, he’s even got a PDF of the complaint for you, with the US District Court version available here and the International Trade Commission flavor here.

Q: So what does that actually mean?
A: That is the $64,000 question. At least where $64,000 reads as potentially serious amounts of money. The initial speculation – as hinted at in Bishop’s summary above – was that this was the opening salvo in a long awaited patent war, which would pit Microsoft and its patent portfolio against the Linux kernel and its various contributors and defenders. Upon further review, however, most have concluded that this is not the case.

Q: Before we get there, can you provide some background on this “long awaited patent war?” Why would people expect Microsoft to litigate in this area?
A: Love the patent system or hate it as it relates to software – full disclosure: I personally hate it – it has been established that software is in fact patentable. As a result, virtually all large software companies – Microsoft obviously among them – actively and aggressively pursue software patents. More specifically, in this case, Microsoft has in the past stated that its belief is that certain open source assets – including the Linux kernel employed by TomTom – read on patents that it holds.

In a Fortune article from 2007, then-“licensing chief” Horacio Gutierrez had this to say on the subject:

Gutierrez refuses to identify specific patents or explain how they’re being infringed, lest FOSS advocates start filing challenges to them.

But he does break down the total number allegedly violated – 235 – into categories. He says that the Linux kernel – the deepest layer of the free operating system, which interacts most directly with the computer hardware – violates 42 Microsoft patents. The Linux graphical user interfaces – essentially, the way design elements like menus and toolbars are set up – run afoul of another 65, he claims.

As you might imagine, these claims did not make people within the Linux community specifically and the F/OSS world particularly happy, especially given the fact that they are long on claims and short on details.

Since that public interview, many in the industry have been expecting Microsoft to strategically attack one or more of the allegedly infringing projects. It was in this context, then, that the news that Microsoft was litigating around the Linux kernel was read as a shot across the bows of Linux users everywhere.

Q: So it is not a shot across the bow?
A: Probably not, although the perception that it is could certainly be argued to serve Microsoft.

Q: Let’s come back to the latter claim, but first let’s explore why this is not believed to be an attack on Linux specifically or open source generally?
A: We can begin by setting aside Gutierrez’ claims that this is about TomTom rather than open source – “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” is one of the quotes attributed to him – because that’s precisely what you would expect a spokesperson to say in a case like this. It’s interesting to note, as an aside, that Gutierrez was recently promoted.

Anyway, my read – as I related to Steven J. Vaughan-Nichols – was that this was not the long awaited patent offensive because it was too oblique. As the inestimable Andy Updegrove observes:

For benchmarking purposes, it’s important to know that while Microsoft has spent a great deal of time urging vendors over the years to take out licenses to multiple patents, including those that it claims are infringed by Linux (and other open source software), it has almost never sued anyone, ever, for infringement of any of its patents relating to any of its products. But it does make its expectations very clearly known to those vendors that it drops in to visit. According to Microsoft, its five year old licensing program has resulted in licensing deals with over 500 vendors. Hence the question that everyone is asking today: why now, and why against this particular company?

On the latter question, I think it’s worth noting what products are involved. None of Microsoft’s flagship products are involved. Rather, it’s GPS mapping software (TomTom competitor Garmin Ltd. has reportedly signed a licensing agreement with Microsoft already for MSN Direct, which provides traffic, flight and weather information to GPS devices.

So while neither I nor Andy, apparently, expects this to be a major shift in Microsoft’s approach vis a vis patent litigation and open source, I would still argue that the choice was anything but accidental.

Q: How do you mean?
A: Much like the Fortune story from 2007, Microsoft can potentially benefit here by sowing Fear, Uncertainty and Doubt even if – as is presumed here and elsewhere – Linux is not the actual target. The initial media coverage, after all, was heavily focused on the Linux/patent angle, at the expense of other angles. That could benefit Microsoft even while costing them.

Q: What does this cost Microsoft?
A: Each time Microsoft raises the spectre of patent litigations around open source – or, as in this case, others do it for them – they take a step or two backwards in their ability to work effectively with a variety of open source communties. While litigation is often how deals are done with commercial entities, communities react very differently.

Microsoft, for the record, does not agree with the initial contention, however.

Q: In what way?
A: I put the following question to Microsoft last week:

Beyond the explanation provided – that this is a dispute with TomTom rather than the community behind the Linux kernel – is it Microsoft’s contention that the involvement of Linux in the dispute is purely coincidental and not at all relevant to the complaint itself?

Their answer read as follows:

Open source software is not the focal point of this action. This case against TomTom, a global commercial manufacturer and seller of proprietary embedded devices, involves infringement of Microsoft patents by TomTom devices that employ both proprietary and open source software 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 software environments, such as Samsung, LG Electronics, Fuji-Xerox, Brother, and Kyocera Mita.

Q: What about the specific patents at issue?
A: Many, predictably, seem foolishly vague: you can patent a “Vehicle computer system with wireless internet connectivity?” Really?

But I’ll leave those to others: the three that are most germane to Linux are the implementations relating to the FAT filesystem. USPTO #’s 5,579,517 (26 November, 1996) Common name space for long and short filenames, 5,758,352 (26 May, 1998) Common name space for long and short filenames, and 6,256,642 (3 July, 2001) Method and system for file system management using a flash-erasable, programmable, read-only memory, specifically (thx, Stephe). As Larry Augustin says, while the industry has long treated FAT as a standard, it is not, and as ridiculous as those patents sound – and they sound ridiculous here – they are in fact patented.

Which might be why Microsoft considers the patents sound in the first place, though, as is Andy, I’m very curious to see what happens now that they are going to be the subject for a potentially huge prior art search.

Q: How are Linux advocates reacting to the news?
A: Urging caution, but also calm. Jim Zemlin, for example, the CEO of the Linux Foundation, wrote this post whose title included “Calm Down, Hope for the Best, Plan for the Worst.” At the very least, Microsoft can expect a vigorous retaliation from a variety of corners should it attempt claims on the Linux kernel directly.

Q: What about arguements such as Groklaw’s contention that the Bilski en banc decision render some or all of the patents questionable?
A: For those that missed the original Groklaw reaction that referenced Bilski, take a look here. Curious about that myself, I put the following question to Microsoft:

Setting aside the issues many have with the current patent system, what is Microsoft’s level of concern regarding the validity of some of the patents in question following the Bilski decision?

Their reply was a terse:

We are confident of the validity of our patents in this case.

So I guess we’ll see.

Q: Any other reactions worth noting?
A: Well, I would check out old friend Stephe Walli’s piece, in which he argues that this about the mobile internet rather than Linux. Interesting reading.

But overall, I don’t see this as a landmark piece absent further related litigation. It’s a case of interest, certainly, one to watch, but not the other shoe that it was initially believed to be.


  1. I don’t understand why “patent litigation” is considered a danger to linux, yet companies paying holders of the exact same “patents” licence fees is considered business as usual? Aren’t they just two sides of the same coin?

    Am I missing something here?

    Also, what is with Microsoft’s distinction between patents in proprietary software and in open source software code? Patents cover the idea, not the implementation, so what they are saying is that you can’t implement any idea covered in these patents without paying a licence to Microsoft. So whether the code in question is open or proprietary matters about as much as if it is Cobol, Java or Ruby, it’s still covered by the patent.

    Everyone laughed at the bailed out car companies, “you didn’t like our products but we’re taking your money anyway” but I can’t see the difference with this situation. Seems like Microsoft is preparing themselves for a future of parasitically profitable irrelevance.

  2. You don’t mention Brian Kahin’s article[1], which I find compelling. His summary: “Some wishful thinkers within the open source community may accept Microsoft’s claim that this is about TomTom rather than Linux, along with the blather that accompanies most patent litigation about how Microsoft would rather license than litigate. But this is in fact a landmark assault into the most troubled and controversial terrain of the patent system. It will reverberate for a long time to come.”

    [1] http://www.huffingtonpost.com/brian-kahin/microsoft-roils-the-world_b_171985.html

  3. It’s been almost 2 weeks since you’ve posted something. Back in the day, you and James regularly posted short articles and links, and those were very effective at pointing me towards new trends and discovering experts. I understand that Twitter has replaced the blog as medium of choice… but some of us poor ADD-addled slobs need to abstain from Twitter. Will Tecosystems return to the blogosphere?

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