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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, misplaced. Last week, it was revealed that 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:
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:
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:
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 them reinstated 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 considered. 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 other systems.
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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