Almost two years ago, your editor sat on an Open Source Business Conference
panel with Microsoft's Sam Ramji, who made the point that Microsoft had
only launched patent infringement lawsuits twice in its existence. Given
that, worries about the Microsoft/Novell patent deal were, in his opinion,
week, it was
the count has gone up to three: Microsoft has filed a lawsuit against
TomTom, a maker of Linux-based navigation devices. There is much
speculation and uncertainty on the net as to just what this action means.
Your editor means to add to it by saying that Microsoft's intentions would
appear to be relatively clear.
The patents which TomTom is alleged to be infringing are:
(Vehicle computer system with open platform). This patent, filed in
1999, covers the innovative concept of mounting a computer in a
vehicle dashboard. Literally, that is all there is to it.
(Vehicle computer system with wireless internet, 1999). This one
extends the previous patent by adding an Internet connection to the
(Method and system for generating driving directions, 2003), appears
to cover the basic turn-by-turn instructions provided by just about
any navigation unit on the market.
(Methods and Arrangements for Interacting with Controllable Objects
within a Graphical User Interface Environment Using Various Input
Mechanisms, 2000). This patent is relatively impenetrable, but
appears to cover a framework for binding responses to user interface
(Portable computing device-integrated appliance, 2005). The deep
concept here appears to be recognizing a docking station and causing
the user interface to configure itself accordingly.
(Common name space for long and short filenames, 1995) and 5,758,352
(Common name space for long and short filenames, 1996). These are the
infamous patents on the long filename hacks embedded in the VFAT filesystem.
(Method and System for File System Management Using a Flash-Erasable,
Programmable, Read-only Memory, 1992). This one covers a fairly
straightforward mechanism for managing flash memory by dividing large
erase blocks into filesystem-sized blocks and allocating them
The first two patents in this list appear to be laughable indeed; it is
hard to see how they can pass the obviousness test. This is especially
true in light of the KSR v. Teleflex
ruling, wherein it was decided (also in the automotive setting) that
the idea of
connecting a floor pedal to an electronic throttle control was too obvious
to patent. The navigation patent would appear to be infringed by anybody
who sits in the passenger seat and helps the driver find a destination.
The docking station and GUI patents seem less clear, but it doesn't seem
like it should be all that hard to find suitable prior art.
That leaves the final three patents, all of which are relevant to the Linux
platform. Like almost every other system on the planet, Linux supports the
VFAT filesystem, and, thus, could be argued to infringe upon the relevant
patents. The flash patent looks much like the technique used by any system
which manages flash memory in anything but the stupidest of ways. It would
appear that Microsoft has finally decided to follow through on its
longstanding patent threats against Linux.
Of course, not all agree. The 451 Group posted this
fairly impressive apology for Microsoft, claiming:
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
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.
Your editor wishes to politely dismiss this talk as dangerous nonsense.
There is nothing special about TomTom's kernel with regard to these
patents. One would think that it would make little sense for TomTom to go
into the kernel source and create its own special version of VFAT which
infringes on Microsoft's patents. Of course, embedded systems developers
have been known to do some very strange things, so one cannot take TomTom's
good sense for granted in this situation. So, for the definitive word, we
will refer to Harald
Welte's take on TomTom's kernel:
I have actually reviewed the TomTom kernel sources a number of
times during the last couple of years as part of gpl-compliance
reviews. I can tell you, there is nothing "TomTom specific" in
their FAT FS code. It is the plain fat/msdos/vfat file system like
in every kernel.org kernel.
If TomTom is infringing Microsoft's patents, then everybody who is running
Linux is infringing those patents. This is an attack against Linux; TomTom
has just been given the honor of being the first defendant.
Microsoft's motivation would seem to be clear. The company has tried for
years to sell versions of Windows into the embedded systems market, with
success best described as "modest." Linux is hard to compete against in
these systems; it is highly portable, can be customized to an arbitrary
degree, offers support from multiple vendors, and can be shipped with no
royalty charges. Microsoft would like to take away some of those
advantages by imposing a patent tax on embedded Linux deployments.
Embedded systems vendors cannot miss this message: they can pay licensing
fees, or they can pay legal fees.
The obvious question at this point is: what now?
The VFAT patents may appear to fail the obviousness test; they could also
run into difficulties stemming from the Bilski
decision. These patents are problematic, though: the Public Patent
Foundation tried hard to invalidate these patents in 2004, only to have
by the US patent office in 2006. As a result, there will be a certain
presumption of validity which could prove hard to overcome in court. It
has often been said that attempts to invalidate patents carry risks; what
doesn't kill a patent may well make it stronger.
Your editor would certainly not advise anybody to give up on efforts to
defeat these patents, but the possibility that they could stand must be
The loss of the VFAT filesystem would be painful. It is a poor filesystem,
but it has become a sort of de facto interchange format for
storage-oriented devices. Without VFAT, Linux users would encounter
difficulties working with their digital cameras, cellular telephones, and
music players. Sharing storage devices with Windows systems would become
harder. VFAT would become a technology like MP3: unavailable on many Linux
systems until installed from some third-party repository on the net.
Avoiding this outcome seems desirable. One way would be to defeat these
patents in court. To that end, one can only hope that TomTom will stand up
to this attack and defend its rights. The rest of the industry would be
well advised to consider helping TomTom in this fight. This case, if
fought to its conclusion, will certainly be expensive. But the cost of not
fighting it seems certain to be much higher.
Another way to deal with the VFAT patents would
be to start a serious look for workarounds - a technique which the free
software community does not, yet, make enough use of. Patents tend to be
tightly written, meaning that workarounds are often possible with relatively small
changes. It may well be possible to make changes to the VFAT filesystem
which pass the patent-lawyer test while maintaining interoperability with
Indeed, a suitably clever lawyer might be able to argue that Linux already
operates outside the patent; the claims require that the long filename
include "more than the maximum number of characters that is permissible by
the operating system," something which is clearly not the case on Linux.
Your editor, however, is neither a lawyer nor suitably clever; this kind of
determination will need to be made by others.
At the upcoming Linux
Foundation Collaboration Summit, your editor will be running a panel on
kernel development. Sam Ramji, alas, will be in the other room at that
time, sitting on a panel entitled "Why Can't We All Just Get Along: Linux,
Microsoft & Sun." One can imagine the course this discussion is going
to take; Sun is likely to get off easy. Parts of Microsoft (especially
those represented by Mr. Ramji) have been making friendly noises toward
open source for some time. But actions speak louder than friendly noises,
and this particular action speaks loudly indeed. Parts of Microsoft are
almost certainly sincere about wanting to get along with the Linux
community, but the stronger forces within the company, it seems, are not.
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