Microsoft's lawsuit against Linux-based technology vendor TomTom over alleged patent violations could signal a more aggressive stance by the software giant over intellectual property issues — or it could be just an isolated case involving a dispute with one vendor.
The Linux Foundation is monitoring the situation, and an intellectual property attorney suggested the case might crimp open source usage. A TomTom representative said the company rejected Microsoft's claims and will vigorously defend itself.
Microsoft has a filed a lawsuit against TomTom, a maker of automobile-based navigation systems, saying the company had violated eight Microsoft patents. TomTom's devices run a version of the Linux OS. Microsoft charges that TomTom's Linux implementation violates three of its patents.
Microsoft has sought to negotiate a licensing of its technology for a fee from TomTom but has been unable to reach an agreement, said Horacio Gutierrez, Microsoft's corporate vice president of intellectual property. Citing other intellectual property licensing agreements, such as a controversial one with Novell in 2006, Gutierrez said the company wants to license its intellectual property on reasonable terms. But some cases will arise when a “pragmatic business solution is not attainable. In those cases, we will have no choice but to pursue litigation,” he said.
The lawsuit, filed Wednesday in U.S. District Court for the Western District of Washington, follows what Gutierrez described as a good faith effort that went on for more than a year to resolve the matter. “Frankly, our hope is to be able to resolve this through a licensing agreement that makes sense for both companies,” he said.
“Microsoft respects and appreciates the important role that open source software plays in our industry, and we respect and appreciate the passion and the great contributions that open source developers make in our industry,” Gutierrez said. “This approach and respect is not inconsistent with our respect for intellectual property rights.”
This particular case relates to TomTom's specific implementation of the Linux kernel, said Gutierrez. Asked if the lawsuit would signal other similar litigation to follow, he responded, “We can't speculate about that. We have a strong track record of licensing, which evidences our commitment to that approach and that will continue to be the focus of efforts going forward.”
Microsoft only has filed three patent litigations in its history, and this is the first one involving Linux, Gutierrez said. He stressed that open source “is not the focal point of this action,” Rather, the litigation is over patents Microsoft said TomTom is using in proprietary software. TomTom, said Gutierrez, develops products based on a mix of proprietary and open source code.
The Linux Foundation, meanwhile, emphasized a readiness for any claims against Linux. “The Linux Foundation is working closely with our partner the Open Invention Network and our members, and is well prepared for any claims against Linux,” said foundation Executive Director Jim Zemlin in a statement. “We have great confidence in the foundation they have laid. Unfortunately, claims like these are a by-product of our business and legal system today. For now, we are closely watching the situation and will remain ready to mount a Linux’s defense, should the need arise.”
Zemlin described the case as a private dispute between Microsoft and TomTom. “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,” he said. “It is our sincere hope that Microsoft will realize that cases like these 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,” said Zemlin.
Recently, Microsoft has made overtures to the open source community, such as becoming a sponsor of the Apache Software Foundation and offering its Web Sandbox project for securing Web content via open source. But in the past, the company has irked open source proponents by claiming that open source technologies, including some in Linux, violate 235 Microsoft patents.
Microsoft's move against TomTom could put a damper on commercial use of open source software, an intellectual property attorney said. “I think it certainly has the potential to do so, and whether that has any long-lasting effect is another question,” said Jason Haislmaier, of Holme Roberts & Owen in Boulder, Colo.
“You might have a strong reaction based on fear,” initially, he said. Over time, there still could be some effect but not as much of the shock effect, said Haislmaier. Linux, he said, is just as susceptible to a patent infringement lawsuit as any other OS, he said.
Whether Microsoft takes more action remains to be seen, Haislmaier noted. He acknowledged the company previously has complained about its patents being allegedly violated by Linux. “The proof will happen over time whether this is the opening salvo [of] Microsoft putting patents where its mouth has been,” said Haislmaier.
He advised management of open source risks by knowing what open source software is being used and complying with applicable licenses. There are also are indemnification services that cover multiple open source projects, Haislmaier said. He has done work for OpenLogic, which has offered this type of service, he added.
A critic of Microsoft, Roy Schestowitz, editor of the Boycott Novell Web site, emphasized Microsoft's pursuit of royalties as a new development. “My stance is that TomTom is likely to be one company among several more that were quietly pressured to pay Microsoft for software patents,” Schestowitz said. Microsoft declined to respond to Schestowitz's comment.
