LinuxGram

The Linux kernel apparently does in fact infringe on Microsoft’s patents – at least that’s certainly the way it looks to the casual observer because TomTom has agreed to yank the offending widgetry out of its GPS devices over the next two years.

That’s part of the deal it made with Microsoft the other day that settles Microsoft’s patent infringement suit against the Dutch company and TomTom’s show countersuit.

TomTom is paying Microsoft an unspecified amount of money for five years’ worth of protection against the eight patents that Microsoft charged TomTom with treading on including the three file management systems (FAT) patents related to the GPL 2-covered Linux kernel.

And Microsoft gets covered but doesn’t have to pay for the four TomTom patents it was allegedly offending.

Microsoft claims that the way the patent coverage is constructed “is fully compliant with TomTom’s obligations under the General Public License Version 2” complements of a legal workaround, a variation on the Novell accord.

It said, “TomTom will remove from its products the functionality related to two file management system patents (the FAT LFN patents), which 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 end customers under these patents during that time.”

In a statement Microsoft deputy counsel Horacio Gutierrez remarked that the FAT patents have been “licensed by many companies, including those that produce mixed source products.”

“We were able to work with TomTom to develop a patent agreement that addresses their needs and ours in a pragmatic way,” he said. “When addressing IP infringement issues, there are two possible paths: securing patent coverage or not using the technology at issue. Through this agreement, TomTom is choosing a combination of both paths to meet the unique needs of its business, and we are glad to help them do so.”

The episode was only the third time in its life Microsoft sued somebody for patent infringement and the very first time it took out after Linux although it has protested for years that Linux infringes on its IP.

Microsoft settled all three suits out of court. Before filing suit and complaining to the International Trade Commission in late February, Microsoft reportedly chased TomTom for over a year trying to get it to license its patents and so wanted treble damages.

Now the questions are whether the open source community will challenge the agreement and who’s next?

The Linux establishment was not well pleased.

Red Hat’s legal people waded in with the opinion that “without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid.” TomTom, they contend, could have had other reasons for settling and without knowing the terms of the settlement, it’s impossible to say whether they comply with open source rules or not.

The Software Freedom Law Center put out a statement saying, “The settlement neither implies that Microsoft patents are valid nor that TomTom’s products were or are infringing.”

And what’s more it claims that Microsoft’s patent are invalid and promises to “act forcefully to protect all users and developers of free software against further intimidation or interference from these patents.”

It said that it and the Open Invention Network and the Linux Foundation would “participate in a coordinated, carefully graduated response on behalf of all the community’s members to ongoing anti-competitive Microsoft conduct.”

The head of the Linux Foundation Jim Zemlin accused Microsoft of recidivist FUD around Linux in a blog saying, “In the last several days Microsoft has shown that despite claims of acquiring a newly found respect for open principles and technology, developers should be cautious in believing promises made by this ‘new’ Microsoft. When it counts, it appears that Microsoft still actively seeks to undermine those technologies or standards that are truly open, especially when those technologies pose a significant threat to their business.”

At the risk of interoperability, he also said, “The Linux Foundation is here to assist interested parties in the technical coordination of removing the FAT filesystem from products that make use of it today.”

It’s unclear how he comes to the conclusion that the outcome of this case is “a testament to the power of a concerted and well-coordinated effort by the Linux industry and organizations such as the Open Invention Network, the SFLC and the Linux Foundation. This was not merely a typical David vs. Goliath story. This time David aligned itself with the multiple slingshots of the Linux community. Microsoft relented as soon as TomTom showed they were aligned with that community and ready to fight. The system is working.”