Microsoft goes BamBam on TomTom (and Linux?)

In Tuesday's IT Blogwatch, we watch TomTom (and Linux) get unsettled by Microsoft. Not to mention Twitter's mentionables ...

Elizabeth Montalbano reports:

GPS navigation device vendor TomTom International BV has agreed to pay Microsoft to settle patent-infringement cases the companies filed against each other in the last five weeks, but Microsoft will not pay fees to TomTom.
TomTom logo

TomTom will pay Microsoft to license patents for technologies in its car navigation and file-management system, effectively settling a case Microsoft filed against it last month in the U.S. District Court for the Western District of Washington and with the International Trade Commission, Microsoft said via e-mail today.

However, Microsoft is not paying TomTom to license four patents in Microsoft Streets and Trips, which were at the center of TomTom's case against it in U.S. District Court for the Eastern District of Virginia. That suit, filed earlier this month, was a reaction to Microsoft's. ... The result could have ramifications in the open-source community, which was concerned when Microsoft filed its case against TomTom. The patents at the center of Microsoft's case involved technologies found in a version of the Linux OS that TomTom's portable devices run, and Microsoft has made bold claims that Linux violates more than 235 of its patents.

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Nilay Patel frets about Microsoft legal's read of the win:

TomTom has also agreed to remove certain functionality from its PNDs within two years. That's huge -- not only did TomTom's attorneys calculate that the total cost of this settlement was less than the cost of a trial and a potential loss, the overwhelmingly one-way nature of the deal implies they felt they were holding a bad position. Since we don't know if that was more to do with the navigation patents or the FAT patents, we can't really say what's going to happen next, but Microsoft's made no bones about the fact that it thinks Linux violates all sorts of its IP, and cruising to an easy settlement in a month like this just might encourage its legal department to go digging for gold in troubled economic times. We'll see.
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Richard Waters maps out the deal:

The settlement's real significance, though, may lie in the fact that it has allowed Microsoft to put down two markers that could well influence how other "mixed source" software companies behave in future.

One involves the two patents for which TomTom has agreed to remove functionality, relating to Microsoft’s FAT file management system. In a statement, the Software Freedom Law Center insisted that the FAT patents "are now and have always been invalid patents in our professional opinion." But the practical effect of the TomTom settlement may be to lead other developers to steer away from risking a claim of infringement themselves.

After all, this is only the third patent case Microsoft has ever brought, and the first involving open source, so TomTom's retreat will reverberate.

The second marker that Microsoft has put down relates to its implied threat that Linux customers can only safely use the open source system if they are operating under a "safe harbour" granted by Redmond.

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Ina Fried reads between the lines:

Although the pact may settles things for TomTom, it adds further questions marks for where Microsoft is headed with its broader claims against Linux. The software maker has refused to go into detail as to what actions it might take against other companies that use Linux commercially.

However, the company has aggressively sought patent deals with companies that use Linux commercially. In addition to its deals with Linux vendors such as Novell, TurboLinux, and Xandros, Microsoft has also signed pacts with consumer electronics firms that use Linux, such LG, Samsung, and Fuji Xerox.

In recent interviews, [Microsoft deputy general counsel Horacio] Gutierrez has said that, although each case is different, Microsoft has an obligation to its shareholders as well as to the companies that have taken patent licenses to ensure that Microsoft is being fairly compensated for its intellectual property, including in cases involving Linux.

Until the TomTom case, we had only seen examples where Microsoft was able to convince companies to take a license. The TomTom case shows, though, that we may see Microsoft begin to take further action when negotiations don't lead to a deal.

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Eric Krangel talks of crevices:

The TomTom lawsuit put Microsoft between a rock and a hard place. The company has long maintained that parts of Linux violate its patents, but has never actually had to prove so in court.

Microsoft couldn't let TomTom set a precedent of publically flouting its (claimed) patents. But an actual "Microsoft v Linux" trial/media circus would be disastrous PR for the company. Particularly as Microsoft kicks off a new anti-Apple (AAPL) ad campaign, attempts a rebrand of Microsoft search, and prepares a major consumer-facing launch in Windows 7.

But we don't expect Microsoft to kick off more lawsuits against Linux-users. The company took a gamble that TomTom wouldn't/couldn't drag this out in court, and if Microsoft keeps launching more lawsuits, there's always the risk any defendant might get stubborn.

For a company of Microsoft's size, whatever few dollars are at stake in lost licensing fees is inconsequential compared to the nuisance of rousing the Linux giant once again.

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Joe Wilcox sees winners and losers:

Microsoft is the big winner in the settlement announced today with TomTom.

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TomTom was an easy target, because it couldn't easily fight back. But there was risk. Microsoft hasn't identified the patents alleged to be violated by open-source software. A court battle would have eventually forced Microsoft to fess up, even if under cover of trade secrets protected by the court.
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Groklaw weighs in:

As long as TomTom stays under GPLv2, this might squeak by. But it's hardly ideal. I'd have preferred that TomTom not settle so that the FAT patents could get tested in court, but it's not my dime.

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If TomTom doesn't upgrade to GPLv3 code, this might squeak by, on the same concept that the payment isn't a royalty on the code paid by the company to Microsoft, but a payment for the direct promise to TomTom customers from Microsoft not to sue them, but if so, TomTom isn't exactly trying to be a FOSS hero. And Microsoft is already using them to troll for more such deals.
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And finally...

Previously in IT Blogwatch: Buffer overflow:

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Today's post was compiled by Mike Barton. Richi Jennings is on vacation.

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