Microsoft v. TomTom: Patent war, or no?

Microsoft has not declared war on open source through a suit targeting the GPS device maker's implementation of the Linux kernel. It's business as usual.

Matt Asay Contributing Writer
Matt Asay is a veteran technology columnist who has written for CNET, ReadWrite, and other tech media. Asay has also held a variety of executive roles with leading mobile and big data software companies.
Matt Asay
4 min read

Last week, Microsoft promoted Horacio Gutierrez, formerly vice president of intellectual property, to corporate vice president. This week, Gutierrez polished his new business cards and sent them TomTom's way, with a patent infringement lawsuit.

As CNET News' Ina Fried reports, Microsoft on Wednesday launched a patent infringement lawsuit against TomTom, maker of GPS systems. TomTom, for its part, summarily rejects the claims and says it will "vigorously defend" itself. Lawsuits are filed all the time, but this one is of particular interest to the open-source community because it includes three claims of patent infringement related to Linux file management technologies.

Glyn Moody wonders whether Microsoft has taken the first step in an all-out patent offensive against Linux. After talking with Gutierrez earlier this week, I highly doubt that.

As Gutierrez told CNET News, Microsoft's lawsuit is very specific to how TomTom uses the Linux kernel: "(It's the) TomTom implementation of the Linux kernel that infringes these claims. There are many flavors of Linux (and) many implementations of the Linux kernel. Cases such as these are very fact-specific."

This hardly sounds like a sneaky launch of the spiffy new patent product line at Microsoft. It sounds more like what Gutierrez claims it is: "This is just a normal course-of-business dispute between two companies. (Linux) is not the focal point of the action." Ironically, it could have been obviated had Microsoft bought TomTom back in 2006, as it was then rumored to be interesting in doing.

For all the bluster in the open-source press right now, it's important to keep in mind that TomTom has been battling patent lawsuits for years, some of which may relate to its use of Linux. In 2005, its CEO said at the ICT2008 conference that TomTom spent more that year on patent litigation than on anything else combined. Microsoft's eight-part lawsuit is par for the TomTom course, it would seem.

This speaks ill of the patent minefield that awaits any technology company, a problem called out recently by Red Hat associate general counsel Rob Tiller. But it doesn't necessarily mean that Microsoft has declared war on Linux.

For Microsoft to do that credibly, it would have to go where Linux is strongest and has the highest earning potential: servers. There, Microsoft will encounter IBM and others with bigger patent portfolios than its own. Microsoft has shown little appetite for that fight.

It's also important to remember, as TechFlash reminds us, that Microsoft has never been a litigious company. While I despise the FUD that Microsoft has promulgated around open source and Linux, specifically, over the past few years, the reality is that Microsoft has sued only three times in its company history over patent claims.

This is not Microsoft's opening salvo in a war against open source. That "war" has been ongoing for years, has taken many forms, and seems to want to change open source's $0.00 price tag to something higher. Something, in other words, with which Microsoft can compete.

Even so, I think that Microsoft has resigned itself to coexistence with open source, even if it's not always a peaceful coexistence. On the same day that Microsoft announced the TomTom lawsuit, Microsoft Windows chief Bob Muglia also acknowledged that eventually, "almost all our product(s) will have open source in (them)." Microsoft has taken a reality check, and open source is part of reality.

But part of that reality will absolutely be infringement of Microsoft's patents, and Microsoft's own violation of Linux-related patents (held by IBM, Hewlett-Packard, and others). That's the patent minefield in which the software industry operates.

It's not a system I like, but let's not get carried away. The GPS community doesn't seem to be wringing its hands over the fact that most of the claims in Microsoft's case relate to TomTom's alleged infringement of Microsoft's GPS technologies.

Maybe we, in the open-source world, need to settle down a little. We have an allergic reaction to patent infringement suits--and for good reason--but one company-specific lawsuit does not a war campaign make.

This TomTom suit, in other words, may well be the opening shot in a broader battle, but for now, it's the action of a sniper, not a broad fusillade.

In some ways, we should be grateful for how Microsoft has carried itself in this TomTom infringement claim. There are no broad pronouncements of Linux violations, as in the past. There are no white papers being circulated, decrying open source as anti-American and cancerous. There is just a reasoned, FUD-free patent infringement claim.

It may turn out to be specious, but it's very welcome to see it made without the sound and fury of past Microsoft public pronouncements about open source.

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