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| DATE | 2009-02-27 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [NYLXS - HANGOUT] MS/GNU Legal Battle prelude part II
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Microsoft sues Linux-based vendor over patents
The legal action against TomTom could signal a more aggressive
stance regarding open source by the software giant
By Paul Krill
February 26, 2009
Microsoft's lawsuit against Linux-based technology vendor TomTom over
alleged patent violations could signal a more aggressive stance by the
software giant over intellectual property issues -- or it could be just
an isolated case involving a dispute with one vendor.
The Linux Foundation is monitoring the situation, and an intellectual
property attorney suggested the case might crimp open source usage. A
TomTom representative said the company rejected Microsoft's claims and
will vigorously defend itself.
*[ In* *2007, Microsoft demanded royalties from open source software
companies
| Microsoft could be taking a closer look at open source because Linux
is the primary competition against Microsoft's Windows Server OS
.
]*
Microsoft has a filed a lawsuit against TomTom, a maker of
automobile-based navigation systems, saying the company had violated
eight Microsoft patents. TomTom's devices run a version of the Linux OS.
Microsoft charges that TomTom's Linux implementation violates three of
its patents.
Microsoft has sought to negotiate a licensing of its technology for a
fee from TomTom but has been unable to reach an agreement, said Horacio
Gutierrez, Microsoft's corporate vice president of intellectual
property. Citing other intellectual property licensing agreements, such
as a controversial one with Novell in 2006
,
Gutierrez said the company wants to license its intellectual property on
reasonable terms. But some cases will arise when a "pragmatic business
solution is not attainable. In those cases, we will have no choice but
to pursue litigation," he said.
The lawsuit, filed Wednesday in U.S. District Court for the Western
District of Washington, follows what Gutierrez described as a good faith
effort that went on for more than a year to resolve the matter.
"Frankly, our hope is to be able to resolve this through a licensing
agreement that makes sense for both companies," he said.
"Microsoft respects and appreciates the important role that open source
software plays in our industry, and we respect and appreciate the
passion and the great contributions that open source developers make in
our industry," Gutierrez said. "This approach and respect is not
inconsistent with our respect for intellectual property rights."
This particular case relates to TomTom's specific implementation of the
Linux kernel, said Gutierrez. Asked if the lawsuit would signal other
similar litigation to follow, he responded, "We can't speculate about
that. We have a strong track record of licensing, which evidences our
commitment to that approach and that will continue to be the focus of
efforts going forward."
Microsoft only has filed three patent litigations in its history, and
this is the first one involving Linux, Gutierrez said. He stressed that
open source "is not the focal point of this action," Rather, the
litigation is over patents Microsoft said TomTom is using in proprietary
software. TomTom, said Gutierrez, develops products based on a mix of
proprietary and open source code.
The Linux Foundation, meanwhile, emphasized a readiness for any claims
against Linux. "The Linux Foundation is working closely with our partner
the Open Invention Network and our members, and is well prepared for any
claims against Linux," said foundation Executive Director Jim Zemlin in
a statement. "We have great confidence in the foundation they have laid.
Unfortunately, claims like these are a by-product of our business and
legal system today. For now, we are closely watching the situation and
will remain ready to mount a Linux’s defense, should the need arise."
Zemlin described the case as a private dispute between Microsoft and
TomTom. "We do not feel assumptions should be made about the scope or
facts of this case and its inclusion, if any, of Linux related
technology," he said. "It is our sincere hope that Microsoft will
realize that cases like these only burden the software industry and do
not serve their customers’ best interests. Instead of litigating, we
believe customers prefer software companies to focus on building
innovative products," said Zemlin.
Recently, Microsoft has made overtures to the open source community,
such as becoming a sponsor of the Apache Software Foundation
and offering its Web Sandbox
project for securing Web content via open source. But in the past, the
company has irked open source proponents by claiming that open source
technologies, including some in Linux, violate 235 Microsoft patents.
Microsoft's move against TomTom could put a damper on commercial use of
open source software, an intellectual property attorney said. "I think
it certainly has the potential to do so, and whether that has any
long-lasting effect is another question," said Jason Haislmaier, of
Holme Roberts & Owen in Boulder, Colo.
"You might have a strong reaction based on fear," initially, he said.
Over time, there still could be some effect but not as much of the shock
effect, said Haislmaier. Linux, he said, is just as susceptible to a
patent infringement lawsuit as any other OS, he said.
Whether Microsoft takes more action remains to be seen, Haislmaier
noted. He acknowledged the company previously has complained about its
patents being allegedly violated by Linux. "The proof will happen over
time whether this is the opening salvo [of] Microsoft putting patents
where its mouth has been," said Haislmaier.
He advised management of open source risks by knowing what open source
software is being used and complying with applicable licenses. There are
also are indemnification services that cover multiple open source
projects, Haislmaier said. He has done work for OpenLogic, which has
offered this type of service, he added.
A critic of Microsoft, Roy Schestowitz, editor of the Boycott Novell Web
site, emphasized Microsoft's pursuit of royalties as a new development.
"My stance is that TomTom is likely to be one company among several more
that were quietly pressured to pay Microsoft for software patents,"
Schestowitz said. Microsoft declined to respond to Schestowitz's comment.
The three US patents Microsoft says are violated by TomTom's Linux
kernel include:
* Patents 5,579,517 and 5,758,352, providing a common name space for
long and short file names.
* Patent 6,256,642, for a method and system for file system management
using Flash-EPROM.
The other five patents include:
* Patent 6,175,789, pertaining to a vehicle computer system running
multiple applications.
* Patent 7,054,745, offering a method and system for generating driving
directions.
* Patent 6,704,032, for interacting with a controllable object in a
graphical user interface environment.
* Patent 7,117,286, providing for a portable computing device-integrated
appliance.
* Patent 6,202,008, for a vehicle computer system with wireless Internet
connectivity.
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