Analysis: Microsoft-TomTom settlement is end of a battle, not the war

The settlement won't deter legal battles over Microsoft's patents and the open-source community's copyright claims

In a surprising turn of developments, GPS navigation device vendor TomTom International BV has agreed to pay Microsoft Corp. to settle patent-infringement cases the companies had recently filed against each other.

The lawsuits rose above the ordinary run of patent litigation because three of Microsoft's patents touched on areas that are also covered by the open-source General Public License Version 2 (GPLv2) copyright restrictions on Linux. Thus, the lawsuit marked the first time that Microsoft had legally challenged Linux's intellectual property .

The case further heated up when TomTom countersued Microsoft and joined the Open Invention Network (OIN), an open-source patent protection group. But the case came to an abrupt end on March 30.

In return for an undisclosed licensing fee, TomTom can use Microsoft's patents. However, according to a statement from Peter Spours, TomTom's director of IP Strategy and Transactions, the agreement "is drafted in a way that ensures TomTom's full compliance with its obligations under the GPLv2, and thus reaffirms our commitment to the open-source community."

Spours declined, however, to explain how TomTom can both use the patent's intellectual property (IP) and conform with the GPLv2.

Specifically, the two companies claim that "the agreement includes patent coverage for Microsoft's three file management systems patents provided in a manner that is fully compliant with TomTom's obligations under the GPLv2." But, "TomTom will remove from its products the functionality related to two file management system patents (the 'FAT LFN patents') that enables efficient naming, organizing, storing and accessing of file data. TomTom will remove this functionality within two years, and the agreement provides for coverage directly to TomTom's end customers under these patents during that time."

In other words, TomTom may technically be using the Microsoft FAT LFN (File Allocation Table/Long File Name) patents for the next two years, but it won't be using those patents' features. The statement also implies that TomTom will be replacing the long file name support provided by these patents with a different, non-Microsoft, technology.

In a statement, Horacio Gutierrez, Microsoft's corporate VP and deputy general counsel of IP and licensing, said, "The file management system patents, which increase file management system efficiency and functionality, have also been licensed by many companies, including those that produce mixed-source products."

The open-source legal community is not amused. An open-source legal expert and analysts agreed that the legal issues brought up in the case are far from settled.

The Software Freedom Law Center, an organization focused on protecting open-source and free software, said in a statement that the "settlement between Microsoft and TomTom ends one phase of the community's response to Microsoft patent aggression and begins another. On the basis of the information we have, we have no reason to believe that TomTom's settlement agreement with Microsoft violates the license on the kernel, Linux, or any other free software used in its products. The settlement neither implies that Microsoft patents are valid nor that TomTom's products were or are infringing."

SFLC Chairman Eben Moglen added, "The information I have received from TomTom, which is imperfect but not insubstantial," suggests that the settlement does legally handle both Microsoft's patents and the GPL's copyright requirements.

That said, the SFLC's statement notes that "the FAT file-system patents on which Microsoft sued are now and have always been invalid patents in our professional opinion. SFLC remains committed to protecting the interests of our clients and the community. We will act forcefully to protect all users and developers of free software against further intimidation or interference from these patents."

Daniel B. Ravicher, executive director of the Public Patent Foundation, a nonprofit legal services group that tracks the patents system, said he isn't sure the settlement meets the GPL's legal requirements.

"Without being able to review the specific terms of the agreement, it's impossible to say whether this is a good or bad thing. And, while it is possible to settle a patent infringement case in a way that allows the continued distribution of the allegedly infringing code under the GPL, again, without seeing the specific terms of this agreement, one can't say whether such is the case here or not."

In any case, Ravicher continued, "regardless of the settlement, the lawsuit brought by Microsoft was a severe escalation in patent hostility toward the Linux kernel specifically and free/open-source software in general. And the entire community should still be thinking about ways to address that threat."

Pamela Jones, a paralegal and editor of the legal news site, Groklaw agreed. "There is no new Microsoft, just the old one, with granny's cap on for camouflage," Jones said.

Jones said she hopes that everyone in the free and open-source community "will now look for ways to work their way totally out of Microsoft's orbit, once and for all. TomTom did the right thing to refuse to license long term. They prefer to yank the Microsoft stuff out."

Looking ahead, "no one actually knows where the line is for software [patents], after In Re Bilski [a rule-changing court case that puts all intellectual property patents in doubt]," Jones said. "Until that is clarified, no software patent should be presumed valid, in my view.

Jones added that "this isn't a court judgment, so it means something for TomTom, but nothing to anyone else. I hope the next step is we obliterate those [Microsoft FAT] patents. I don't see how they can be valid, frankly."

So, the immediate lawsuit may be over, but the Microsoft vs. open-source community legal war seems far from over.

Copyright © 2009 IDG Communications, Inc.

  
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