TomTom suit shows Microsoft's split personality

Microsoft has been vocal about its interest in working more closely with the open source community in the past couple of years, actively promoting interoperability, forging new relationships and donating code to open-source projects. But the patent-infringement suit it filed Wednesday against TomTom has the Linux community, in particular, concerned that Microsoft is only paying lip service to its new approach and plans to continue to threaten Linux distributors with patent-infringement claims.

Microsoft on Wednesday filed suit against the GPS navigational device maker, alleging it is infringing eight patents, some of which involve technologies found in a version of the Linux OS that TomTom's portable devices run.

Microsoft maintains the suit has nothing to do with Linux itself but is a specific disagreement between the two companies over specific technologies.

"We took this action after trying -- in good faith -- for more than a year to resolve this matter with TomTom," said Microsoft spokesman Michael Marinello in an e-mail Thursday. He said Alpine Electronics of America, Kenwood U.S.A., Pioneer Electronics (USA) and other companies already license the technology in question from Microsoft.

Still, because the patent-infringement suit involves Linux -- which Microsoft executives two years ago controversially claimed violates more than 235 patents the company holds -- the news has made the Linux community uneasy and distrustful of Microsoft once again.

Moreover, it's a reversal of a friendlier attitude toward open source that Microsoft has tried to cultivate with the formation of its Platform Strategy Group a little more than a year ago. The mission of that group, in part, is aimed at reversing the message of Microsoft's infamous "Get the Facts" campaign of several years ago. That campaign aggressively tried to show customers the value proposition of deploying a Windows environment instead of Linux.

Marinello reiterated new IP czar Horacio Gutierrez's stance on the TomTom case that "open source is not the focal point of this action." Microsoft last week appointed Gutierrez corporate vice president and deputy general counsel of intellectual property (IP) and licensing, in charge of steering IP policy at the vendor.

"The case against TomTom involves infringement of Microsoft patents by TomTom devices that employ both proprietary and open-source software code," Marinello said. "More specifically, this case is about TomTom’s infringement as it relates to its specific implementation of the Linux kernel. There are many versions of Linux and many implementations of the Linux kernel, and cases such as these are very fact-specific."

In a blog post on the Linux Foundation Web site, foundation Executive Director Jim Zemlin urged the community not to panic but said the foundation is making preparations in case the suit means further claims from Microsoft against how people are implementing the Linux kernel.

"Right now the Microsoft claim against TomTom is a private dispute between those two entities concerning GPS mapping software," he wrote. "We do not feel assumptions should be made about the scope or facts of this case and its inclusion, if any, of Linux-related technology. ... For now, we are closely watching the situation and will remain ready to [defend Linux], should the need arise."

Zemlin also reiterated the stance of the foundation and the general open-source community that patent-infringement cases "only burden the software industry and do not serve their customers’ best interests."

"Instead of litigating, we believe customers prefer software companies to focus on building innovative products," he wrote.

Andrew Updegrove, an IP lawyer with Boston-based law firm Gesmer Updegrove and an outspoken critic of Microsoft's IP policies, said via e-mail Thursday he believes Microsoft is sincere about the suit being a "one-shot move against TomTom." Updegrove also posted about the suit on his blog.

Still, he thinks the suit is consistent with Microsoft's historic flip-flopping over open source and Linux in particular -- on one hand saying it wants to work with the community, on the other hand dangling the threat of patent litigation.

"Net result? Nothing new," Updegrove said. "Lumping the Linux claims [in the suite] is an opportunistic move to reignite fear in the Linux space" that eliminates "any incipient trust they might have been building, once again, in the open-source community," he said.

Copyright © 2009 IDG Communications, Inc.

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