EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.04.09

TomTom Case is Closed, But the Fight Over FAT Can Hurt Microsoft

Posted in Courtroom, GNU/Linux, GPL, Kernel, Microsoft, Patents, TomTom at 5:55 am by Dr. Roy Schestowitz

Steve Ballmer FAT

Summary: A detailed overview of TomTom/FAT highlights and events which occurred in the past week

THE TOMTOM CASE was a very significant turning point and milestone that can affect judgment in the development of GNU/Linux.

“The story may be over for TomTom, but not for FAT, which will probably be defended (hopefully cleared) by entities other than TomTom.”As a quick recap, TomTom was sued by Microsoft , TomTom counter sued, and it also joined the OIN. Eventually, however, TomTom disappointed by settling rather than challenging the patents and this has impact on projects like Mono and MonoDevelop.

Here is a summary of the last few developments, which indicate that this case if not over yet. The story may be over for TomTom, but not for FAT, which will probably be defended (hopefully cleared) by entities other than TomTom.

Here is Microsoft’s announcement of the settlement, which arrived early in the week. Microsoft tells its shareholder a self-congratulatory story.

Selected Coverage

For future reference, we have gathered a lot of reports which we bind together as follows.

Ryan Paul at Ars Technica: Microsoft and TomTom settle patent dispute

Todd Bishop at TechFlash: TomTom will remove some Linux features in Microsoft settlement

Elizabeth Montalbano at IDG: TomTom to Pay Microsoft to Settle Patent Cases

Glyn Moody at IDG: Bad News: Microsoft Gets its Way with TomTom

In other words, Microsoft gets to say that TomTom acknowledges Microsoft’s file management patents – the ones that touch Linux. This means that Microsoft can now go around to other embedded systems manufacturers and say: “Well, TomTom settled, so they obviously thought the patents were good – wouldn’t it be wise to pay up too?”

This is really starting to play out just as I feared in the beginning. It will be interesting to see how Microsoft proceeds now: whether it openly threatens others using Linux, or does everything discreetly. I predict the latter, but the effect on Linux in this market will still be chilling.

Mike Masnick at DechDirt: TomTom Realizes Microsoft’s Pointy Patent Stick Is Too Sharp… Settles Patent Dispute

What’s still unclear, however, is how this settlement deals with the questions that were raised over GPL’d software used by TomTom. As we noted, the GPL license that covers components of TomTom’s software forbid it from putting any restrictions on the distribution of the software. A deal with Microsoft could violate the GPL and cause trouble for TomTom down the road. Perhaps the company is betting that any legal battle on that front would be cheaper than fighting Microsoft’s patent lawyers in court.

Dana Blankenhorn mat ZDNet: TomTom surrenders to Microsoft in patent fight

The Software Freedom Law Center has not yet hired a patent attorney, a job search it began online March 4, and the Open Innovation Network has not gone beyond its acceptance of TomTom’s membership, alongside that of Novell, released March 23.

This was mentioned along the way in many other Web sites.

No clarity on validity of Microsoft’s claims against TomTom: Red Hat has issued a short statement in response to yesterday’s news that TomTom and Microsoft had settled their patent scrap out of court, in which the company says that “without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid”

Mary Jo Foley correctly points out that TomTom at least signed the settlement in good faith.

Bottom line: TomTom — unlike some other companies developing around Linux which have signed patent-licensing deals with Microsoft — isn’t licensing Microsoft’s FAT as part of this agreement.

Richi Jennings presents this summary of coverages and there is also an April Fool’s joke about TomTom buying Microsoft. Additional coverage can be found in

The Microsoft Spinners

As always, there are Microsoft 'moles' in the press and they are telling a different story in order to promote the company that they support (or indirectly pays their wages). Here is the unofficial ‘Microsoft statement’ from its PR person in CNET (Ina Fried) and here is Microsoft fan Joe Wilcox, who characterises this as a win for Microsoft. Microsoft fan Richard Waters characterises this as a win for Microsoft as well (despite the fact that both sides sued and then settled) and the Microsoft-affiliated press spins this too (and makes factual mistakes, by its own admission).

GPS navigation specialist TomTom can breathe a sigh of relief today and wipe the beads of cold sweat off its anthropomorphic forehead. The company has settled the patent infringement claims Microsoft (Nasdaq: MSFT) brought against it last month.

In what looks like a total victory for Microsoft, TomTom will send license fees to the software giant and stop using a couple of vital file system patents. “When addressing IP infringement issues, there are two possible paths: securing patent coverage or not using the technology at issue,” said Microsoft’s licensing head Horacio Gutierrez in a written statement. “Through this agreement, TomTom is choosing a combination of both paths.”

It’s Just Round One

We wrote about the settlement with TomTom some days ago, but as the SFLC stresses, this is “Settled, But Not Over Yet.”

Today’s 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.

In sight of the settlement, Groklaw too decided to emphasise that this is not over.

There’s more. Red Hat’s legal eagles have put out a statement too, the meat of which is this: “Red Hat was not a party to this case. Even so, without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid.”

In fact, SFLC says they believe they are invalid:

The FAT filesystem 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.

SFLC, working with the Open Invention Network and the Linux Foundation, is pleased to participate in a coordinated, carefully graduated response on behalf of all the community’s members to ongoing anti-competitive Microsoft conduct. We believe in strength through unity, and we think our community’s unity in the face of these threats has helped to bring about Microsoft’s quick settlement on all issues with TomTom.

Steven J. Vaughan-Nichols phrased it a little differently, arguing that the “Microsoft-TomTom settlement is end of a battle, not the war.”

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.”

Matt Asay, a lawyer by training (but less so by profession), is expecting a “round two.”

Red Hat, for its part, declares that “without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid.” And Pamela Jones of Groklaw, a highly influential open-source legal blog, deprecates Microsoft’s claims (“What? You thought Microsoft’s spin on things was always gospel?”), citing the Software Freedom Law Center’s commitment to sticking up for Linux, even if TomTom quickly caved.

Linux Pro Magazine tells a similar story and quite consistently they all cite the SFLC. We are aware that Eben Moglen had to cancel or postpone his journey to Iceland because the SFLC had gotten terribly busy (due to the TomTom case).

Groklaw has some of the corresponding filings.

Two notices of dismissal have been filed with the courts — Microsoft’s in Washington State, and TomTom’s in Virginia, each dismissed without prejudice, ending both patent litigations. “Without prejudice” means that either could ramp it up and do this some more in the future, should circumstances arise that made it necessary. But in most cases, it means the litigation, or whatever, is over. Remember when SCO withdrew “without prejudice” its emergency motion to sell its assets, or Novell’s assets, depending on your point of view? We never saw that again, did we, despite it being withdrawn “without prejudice”.

Who Won This Round Anyway?

Some people have interpreted the settlement almost as though it was Microsoft’s loss. Could Microsoft have backed off because of bad publicity and the involvement of the OIN?

Microsoft appears to have backed off from a wider confrontation with the free and open source software community by settling the alleged patent infringement case that it filed against GPS device maker TomTom last month.

[...]

It is a measure of Microsoft’s diminishing clout in the technology industry that it has had to settle with a tiny company like TomTom. In earlier years, it would have gone for the throat and ensured that an opponent as small as TomTom was shut down.

This will surely encourage smaller software makers and other companies which are targeted by Redmond to feel that they can make a stand and force a settlement.

Here is the statement from TomTom.

TomTom director of IP strategy and transaction Peter Spours wasn’t quite so verbose. “This agreement puts an end to the litigation between our two companies,” he said in his own canned statement. “It 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.”

Microsoft sued TomTom in late February in U.S. District Court for the Western District of Washington and before the International Trade Commission (ITC), claiming that the Dutch GPS manufacturer was infringing on eight Redmond patents but refused to sit down for licensing talks.

Regarding TomTom, RBS wrote that the lawsuit has had limited impact on its financials. TomTom did get heaps of good publicity where it was portrayed as a benevolent victim, didn’t it?

TomTom and Microsoft settled their patent litigation affair. We believe the impact of the agreement does not impact TomTom’s financials, but till it is a relief this affair is no longer hanging over the shares.

Settling with Microsoft
Microsoft issued a press release, which effectively makes an end to the patent litigation affair between both companies. The cases have been settled through a patent agreement under which TomTom will ôpayö MSFT for coverage under the eight car navigation and file management system patents in the MSFT case. Meanwhile MSFT receives coverage under the four patents included in the TomTom countersuit. TomTom will seize to use functionality related to two file management system patents (the ôFAT LFN patentsö), in two years time. Financial obligations where not disclosed, however as TomTom did not release a press release themselves and as TomTom will remain compliant under the General Public License Version 2 (which forbids paying royalties or licence fees), we expect the impact of this deal on TomTom’s financials to be limited if not absent.

Asay says that the “TomTom suit suggests Microsoft’s still Microsoft.” This is no compliment and it is bad publicity for the monopolist. It started barking up the wrong tree, so more developers will keep their distance from Windows.

Removing the FAT

Microsoft has a lot to lose here. It jeopardised its position as the de facto standard in many simple storage devices, thereby opening the door to Free file systems which are not as primitive and unreliable as FAT. Jim Zemlin from the Linux Foundation has already scolded Microsoft (which is rare) for its promises that it cannot keep and he also suggested phasing out FAT.

On the TomTom settlement: Microsoft Rolls Back its “Open” Promises

[...]

Yesterday, Microsoft announced with a formal press release a settlement of a nuisance patent case filed against a smaller company. Despite Microsoft’s protestations to the contrary, the press release makes it clear that the motivation behind this case was the fear, uncertainty and doubt Microsoft hoped the suit would create around the use of Linux. Linux is, not coincidentally, one of Microsoft’s strongest threats in the server, embedded and desktop computing arenas as evidenced in recent remarks make by its CEO Steve Ballmer.

But the settlement of this suit only proves two things. First, the software patent system in the US needs reform. The need for reform stems from why common functionality like this (which is neither innovative nor novel) was granted a patent in the first place.

Second, it proves that, even apart from this larger issue, this case is a non-event. The technology at the heart of this settlement is the FAT filesystem. As acknowledged by Microsoft in the press release, this file system is easily replaced with multiple technology alternatives. 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.

Sam Dean agrees and writes:

I have no doubt that absent federated opposition to Microsoft’s position in this legal battle, and the substantial amount of attention this case got in the mainstream press and the blogosphere, the case would have become much messier. It was all getting to be bad PR for Microsoft. The Linux Foundation, the Open Invention Network, the Software Freedom Law Center and many other organizations are getting better every day at protecting open standards and the rights of Linux project leaders and commercial companies.

This was also covered by Dana Blankenhorn and Ryan Paul, who summarised thusly:

Linux Foundation executive director Jim Zemlin says that Microsoft is hostile to open technologies and that product makers should ditch the company’s patent-encumbered FAT filesystem.

More coverage of this can be found in:

  1. Linux chief calls for FAT-free Microsoft diet
  2. Linux geek calls for death of FAT
  3. Linux foundation chew the FAT. – Gadget news and reviews
  4. The Linux Foundation: It’s Time for a Microsoft FAT Diet

That concludes this latest chapter in the FAT case. It may be over for TomTom, but not for FAT. The fight is still on as Microsoft is approaching debt [1, 2, 3, 4, 5] and looking for new business models that artificially elevate the price of competitors and thus not only generate new revenue streams but also make the competition less attractive. For Microsoft to elect this last strategic resort is a sign of weakness, not strength. Microsoft should have learned from Unisys, as Jason Perlow put it (“Microsoft: Litigate on FAT, and you’ll be the next Unisys”).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. twitter said,

    April 4, 2009 at 8:48 am

    Gravatar

    If nothing else, this case destroys all of the software patent propaganda. Software patents did not protect TomTom and won’t ever protect inventors or small business. M$ used their lately drafted and completely bogus FAT patents to threaten TomTom with obliteration and walked away with a settlement that grants them everything TomTom had. In theory, M$ can make a clone of TomTom’s GPS and dump it onto the market without fear. The next time someone tells you that “software patents protect the little guy,” ask them what good software patents did TomTom.

    Sadly, M$ is more about extortion and control than it is about making anything useful. Business method and software patents are so hopelessly vague, TomTom’s GPS specific patents are sure to step all over those of other GPS companies. When M$ extorts fees other GPS makers, they will have TomTom’s patents in their back pocket to wave against countersuits. Five years from now, if M$ is still around, the agreement is over and M$ will be able to demand TomTom’s tithe. M$’s goal is to be able to charge people rent for free software and punish anyone that does not obey. In this way they would remain the “center of personal computing,” It’s blatantly anti-competitive and a clear admission of their own software’s second rate nature. M$ and other vendors have always depended on the vast productivity of the free software world, these lawsuits make their parasitic relationship obvious.

    It will be difficult to find any business large enough to own software patents that’s brave enough to fight M$’s dying but still obnoxious FUD machine. Despite their apparent worthlessness, patents of any kind are expensive. It practically takes a public company to afford the wasteful process of owning patents and public companies are easily wounded by M$ spin about “weakness.” A kind of heroism is needed to eliminate business method and software patents once and for all, but it will be difficult to find in a company that has invested into the broken system.

What Else is New


  1. Microsoft Technology Crashes Financial Markets, Again

    SunGard, which is a Microsoft shop, is clearly failing to provide what it calls mission-ciriticaal [sic] solutions



  2. Alice v. CLS Bank (Alice/§101) Comes to Squash Software Patents Even in Eastern District of Texas

    The crackdown on software patents is coming along nicely and the Alice case is now being utilised even in the capital of patent trolls



  3. Apple's Patent Cases Against Android Are Falling Apart, as Acknowledged Even by the Anti-Android Lobby





  4. Links 29/8/2015: NetworkManager 1.0.6, Systemd Merges “su” Command Replacement

    Links for the day



  5. Microsoft Loves Linux to Death and Still Tries to Kill GNU/Linux

    Microsoft's relentless attacks on GNU/Linux and Free software in general (even if it runs on Windows) are so evident that claims of 'love' remain laughable at best (if not infuriating)



  6. Censorship, Self-Censorship and Intimidation Now the Modus Operandi at EPO

    The European Patent Office has ceased even trying to pretend that it respects human rights, including the right to free speech



  7. Patent Practitioners: "The Unitary Patent Might be Able to Open the Floodgates for Software Patents in Europe"

    The EPO-backed Unitary Patent scheme threatens to bring software patents to Europe and along with them a lot of patent trolls from all around the world (especially the United States)



  8. Microsoft Lies About Vista 10 and Increases Microsoft Surveillance (Even Beyond Vista 10 and Into Android, Vista 7/8)

    Windows surveillance expands retroactively, making its way into platforms other than Windows and also expanding to predecessors of Vista 10



  9. Another Suicide at the EPO, Fifth by Our Count

    Yet another EPO member of staff has just committed suicide, leading to the inevitable question: how many people need to die before Battistelli and his minions are out of the Office for good?



  10. Links 27/8/2015: ownCloud Desktop Client 2.0, Red Hat Downgraded

    Links for the day



  11. Microsoft-connected Mesosphere Threatens to Eliminate Free Software in the Datacentre

    Hiding behind a misleading 'open' label while actually backed by Microsoft (and based on new rumours may join Microsoft), Mesosphere wishes to eradicate Free and back doors-free software in large datacentres hosting a lot of physical and virtual servers



  12. Microsoft Aggression Against GNU/Linux Amid Vista 10's Failure

    A look at the recent assault on GNU/Linux in Munich and the likely cause for this assault (in such a timely fashion, too)



  13. Message to LinuxCon Regarding Microsoft: “It is Necessary to Get Behind Someone in Order to Stab Them in the Back.” -Sir Humphrey Appleby

    Jim Zemlin, executive director of the Linux Foundation, helps Microsoft gain influence in the Foundation after payments are received



  14. Market Share Estimates Confirm That Vista 10 Failed in a Major Way

    Confirmatory evidence that Vista 10 is failing in the market about a month after its much-hyped (paid coverage) release



  15. When Microsoft, the Master of Patent Trolls, Complains About Trolls

    Possibly the world's biggest patent abuser and monopolist, which also creates many patent trolls (including by far the biggest one), takes on a far smaller abuser in Court



  16. Letter Signed by Two German Officials Becomes a Microsoft Weapon of Propaganda

    Microsoft and its minions refuse to leave Munich alone, even though the vast majority in Munich are perfectly happy with Free/libre software



  17. Links 25/8/2015: Linux Kernel 4.2 Final RC, KDE Ships Plasma 5.4.0

    Links for the day



  18. Sabine Pfeiler and Otto Seidl Should Take Note as Russia -- Like China -- is in the Process of Banning Microsoft Windows for Security Reasons

    A look at a strange suggestion, signed by Sabine Pfeiler and Otto Seidl, who suggest going back to Microsoft which is basically a spyware company now



  19. Microsoft Windows Leads to Espionage and Blackmail: Latest Examples

    Another news overview, detailing high-profile examples of high-cost Windows deployments (including the cost of litigation and settlement)



  20. Links 23/8/2015: BcacheFS Benchmarks, Blackphone 2

    Links for the day



  21. Links 22/8/2015: Chromebook Gains, GNOME 3.18 Clues

    Links for the day



  22. Alice v. CLS Bank (the Alice Case/§101) Continues to Crush Software Patents in the United States

    Patent scope in the United States continues to be narrowed down as more software patents get their wings clipped



  23. Company of Hype and 'Fanbois' Continues Its Patent Attacks on Android/Linux

    Apple's attacks on Android (using bogus patents) may be soon be escalated to the US Supreme Court (SCOTUS)



  24. EPO Corruption of Patent Boundaries: Business Methods and Algorithms Patented

    How the European Patent Office (EPO) not only turns a blind eye to European law while patenting or granting patents on software but also openly advocates this now



  25. Who's Obsessing Over Patent Trolls in Latest 'Reform' Efforts? Larger Patent Trolls Such as Xerox

    Response to claims that the patent problem is being tackled by focusing on patent trolls and their favourite courts in the Eastern District of Texas



  26. Links 20/8/2015: Fedora 24 Plans, Ubuntu Phones in India

    Links for the day



  27. Blackmail and Lies From the Press and the Government of New Zealand Attempt to Sell to the Public a Deal That Broadens Patent Scope

    Corporate conquest or takeover of New Zealand culminates in empty promises from government officials and blackmail against citizens of New Zealand, especially the country's dairy industry



  28. Vista 10 Turns PCs Into Zombies: Microsoft to Remotely Delete Software From Windows, Like Amazon Deleted Books From Kindle

    Microsoft allows itself to remotely delete software from Vista 10 (not just Microsoft's software), as revealed by the mainstream media not too long after the failed launch (poor adoption so far)



  29. Black Duck Still Destroying, Lying, Rewriting History

    Black Duck is still carrying water for Microsoft and pretends to be working for 'Open Source', despite doing it much harm and doing nothing that is actually Open Source



  30. Ashley Madison Disaster Apparently the Fault of Microsoft Windows

    New reports serve to show that Ashley Madison's data which got leaked includes complete dump of corporate Windows passwords


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts