Microsoft-TomTom suit puts open source on guard

Despite Microsoft assurances that a patent lawsuit against GPS navigation company TomTom is not targeting the overall Linux community, open-source leaders said on Thursday that the legal action is antagonistic towards the movement.

Microsoft on Wednesday filed two separate actions against TomTom before the US District Court in Washington and the International Trade Commission, alleging infringement of eight patents, three of which involve Linux. Microsoft deputy general counsel Horacio Gutierrez said the legal actions were taken after attempts to negotiate on licensing failed.

Asked whether Microsoft would sue other open-source developers, Gutierrez said the software giant's dispute was with TomTom and should not be interpreted as a new salvo against Linux or as a shift in its position toward open-source software.

"I think there shouldn't be any ambiguity on our expectations as a company. We recognise that open-source software will continue to be a part of the industry," he said.

However, open-source leaders were still bracing for a fight.

"Microsoft's behaviour is threatening," said Eben Moglen, a Columbia Law School professor and chairman of the Software Freedom Law Center, a not-for-profit organisation that provides legal representation to developers and distributors of open-source software.

"The free [software] world has to defend itself," he said. "We are considering our options and evaluating the situation."

The move runs counter to Microsoft's efforts to work with open source, including announcing an interoperability alliance with Red Hat, embedding open source in its software and adopting open-source strategies.

"The ongoing attempts to find a way of working more peacefully together are going to be hurt by this," Moglen said.

"I'm surprised Microsoft thinks they can get away with this and retain good relations to Floss (Free, Libre and Open Source Software) developers," Jeremy Allison, a prominent figure in the Samba open-source community, wrote in an email. "Now we're seeing the mailed fist behind the velvet glove."

For now, Samba isn't affected by the litigation and Samba development won't change, Allison said.

Jim Zemlin, executive director of the Linux Foundation, said he wasn't making assumptions about the scope or intent of Microsoft's legal action, but was cautious nonetheless.

"It is our sincere hope that Microsoft will realise that cases like these only burden the software industry and do not serve their customers' best interests," he wrote in a blog post entitled Note on Microsoft TomTom Suit: Calm Down, Hope for the Best, Plan for the Worst.

The Linux Foundation "is well prepared for any claims against Linux", Zemlin wrote. "For now, we are closely watching the situation and will remain ready to mount a Linux defence, should the need arise."

Keith Bergelt, chief executive of the Open Invention Network, an intellectual-property company that uses patents to promote a collaborative Linux ecosystem, predicted that the Microsoft litigation would have limited negative impact on the Linux landscape, partly because it remains to be seen whether the patents are valid. He also took jabs at Microsoft for its action.

"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. "And their behaviour is clearly antagonistic to Linux. It's unfortunate they decided to adopt this tactic."

Bruce Perens, a founder of the open-source software movement, said he is concerned that Linux software is involved in the litigation and is watching the situation closely.

"Obviously we are looking at the software patent situation as we have been for 10 years," he said. "We do have our own defensive patents and we may bring some of them into action at some point".

Asked for comment, Microsoft spokesman Michael Marinello reiterated Gutierrez's statements that the litigation is targeting TomTom's specific implementation of the Linux kernel and that open-source software "is not the focal point of this action".

Patents at issue
Not only have the open-source leaders accused Microsoft of being anti-open source in its latest litigation, they also said the Microsoft patents at issue do not seem valid.

"This case could come out very much to our advantage, because it could finally put those patents to bed," Perens said.

One of the patents, which deals with the Windows 95 version of Microsoft's FAT file system entitled 'A Common Namespace for Long and Short Filenames', was invalidated by the US Patent and Trademark Office, but then part of it was reissued on Microsoft appeal, Moglen said.

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Microsoft could have trouble convincing a court of the validity of most of the other patents involved, too, said Van Lindberg, an attorney at Haynes and Boone and author of Intellectual Property and Open Source.

Another patent, which deals with embedding a computer in a car, is questionable because of previous examples of Linux being used in cars before that patent application was filed in 1999, Lindberg said. And several of the other patents could be challenged under a 2008 federal court ruling 'In re Bilski' which placed restrictions on 'method' patents, excluding general business methods that are deemed to be abstract ideas, according to Lindberg.

Individual developers shouldn't be worried because the litigation is most likely part of Microsoft's licensing negotiations and an attempt to get TomTom to pay up, he said. However, longer term, it could be a first step in a broader campaign against Linux-using companies and a way to intimidate them into agreeing to patent cross-licensing deals, Lindberg said.

Microsoft spokesman Marinello said the two FAT Long File Name patents involved have been licensed to 18 companies and have each been affirmed twice by the patent office, and the car-navigation technology patents also have been widely licensed.

"It is also important to note that our patent portfolio was recently given the topic rating for quality by the IEEE patent scorecard for the second year in a row, and we believe that is a testament to the innovation taking place at Microsoft and the quality of our patent portfolio," he wrote in an email.

One Linux company, Timesys, wasn't worried. "Linux has already been accepted as an embedded OS and is rapidly gaining popularity," Atul Bansal, chief executive of Timesys, wrote in an email. "Microsoft recognises this trend and clarified in their interview that this is a dispute between the two companies and not about Linux."