TomTom gets allies in Microsoft Linux patent lawsuit fight

When Microsoft first sued TomTom for patent violations in TomTom's Linux-powered navigation devices, I wasn't sure how much of a fight TomTom would put up. Legally TomTom was between a rock and a hard place. You can't use restricted-use patents in GPLed software. If Microsoft just wanted to use the lawsuit as a hostile takeover tactic, TomTom didn't have anything like Microsoft's financial resources to fight them with.

But, while TomTom may be out-gunned by Microsoft, the OIN (Open Invention Network) isn't. TomTom joined OIN on March 23. The OIN is an intellectual property company that was formed to promote Linux by using patents to create a collaborative ecosystem. Its members include IBM, Novell, Sony, and Red Hat.

One of OIN's initiatives is Linux Defenders, which also brings the resources of the SFLC (Software Freedom Law Center) and the Linux Foundation to bear against anyone who wants to try patent lawsuits against Linux.

Now, neither TomTom nor the OIN is saying they'll use the OIN and friends' patent resources against Microsoft. But, you'd have to be an idiot not to see that that is exactly what they're implying will happen if Microsoft wants to keep pushing forward with its patent lawsuits.

Even Microsoft has to think twice about taking on the entire open-source corporate alliance. A while back I predicted that any company that wanted to fight Linux and open source on patent grounds would find themselves, at best, facing a MAD (mutually assured destruction) patent war. Microsoft, by finally publicly pushing their patents against Linux, is just asking to be smacked around in court.

TomTom has already decided to take the fight to Microsoft. TomTom has sued Microsoft for violating four of its patents in Microsoft Streets and Trips. Making the point that TomTom was serious about it, the Dutch company filed the lawsuit in the U.S. District Court for the Eastern District of Virginia, which is infamous for being friendly to patent lawsuits. As Andrew 'Andy' Updegrove of the Boston-area law firm Gesmer Updegrove LLP and I agreed, "There are few coincidences in love, war, or forum shopping."

If Microsoft wants to fight it out they can. But, as SCO's long, sad history of one courtroom defeat after another has shown, suing Linux companies on intellectual property grounds is a losing game.

Copyright © 2009 IDG Communications, Inc.

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