MICROSOFT'S FILINGS late last week of a federal lawsuit and ITC complaint (PDFs) against GPS navigation device company Tomtom alleging patent infringement have been viewed by some as the beginning of a legal assault by the US software monopolist against the Linux operating system. However, as the case plays out, it might well turn out to be yet another strategic blunder by Microsoft.
That's leaving aside how scratching for marginal software royalties from Tomtom makes it obvious that, despite years of trying, Microsoft can't compete effectively in the market for in-car and personal GPS navigation devices.
Microsoft could end up shooting itself in the foot with these complaints for at least three reasons: its previous neglect to enforce some of the patents that are at issue, the inherent weaknesses of those patents, and an important recent change in US patent law.
The Redmond, Washington company has alleged in its complaints that Tomtom is infringing eight of its software patents. Five of those relate to car computing and navigation devices, but two of them cover methods related to Microsoft's FAT32 file system and one covers wear-leveling routines for flash-based storage. The first five patents deal with proprietary software, but two of those latter three patents target Tomtom's use of the Linux operating system. The flash related patent is largely irrelevant to most Linux systems because flash storage wear-leveling routines are typically firmware microcode functions embedded in SSD hardware controllers.
File Allocation Table (FAT) file systems are used under Linux for boot diskettes (on older systems that still have 'floppy' drives), bootable flash USB keys, and by SAMBA file servers for interoperability with Windows SMB servers. SAMBA enables Microsoft Windows desktops to use Linux file and print servers and Linux desktops to access Windows SMB servers. Tomtom apparently uses the Linux utility dosfstools to transfer map files from FAT formatted SD cards to its Linux-based GPS navigational devices.
Microsoft's precious FAT32 patents that it alleges Tomtom is infringing are #5,579,517 and #5,758,352, which describe simple techniques for managing a 'common name space for long and short filenames.' Those two patents cover the file naming methods Microsoft devised in order to maintain backwards compatibility with its old 11-character MS-DOS filenames in its later versions of the Windows operating systems.
The inclusion of those latter two FAT patents in its complaints is what has some observers concerned that Microsoft might be about to launch a broader legal assault against Linux over software patents. Horacio Gutierrez, a Microsoft VP and deputy general counsel, has denied that the company plans such a campaign, but that's merely what one would expect the company to say, despite its recent attempts to be more accommodating with regard to a new-found adherance to open standards and interoperability with open source software.
Microsoft has a long held antipathy for open source software. In 2001, Microsoft CEO Steve Ballmer described Linux as a 'cancer that attaches itself in an intellectual property sense to everything it touches.' Nearly two years ago, the company told Fortune magazine that it had identified 235 instances where the Linux desktop software stack infringes its patents.
But Microsoft has never identified any of its patents that it claims Linux or any other open source software allegedly infringes, nor has it described the details of any such patents, leading many to conclude that its claim was merely bluff and bluster.
However, since Microsoft has filed its complaints against Tomtom over two patents that implicate that company's use of Linux, and Tomtom has denied that its products infringe those patents, it's now conceivable Microsoft's FAT patents will be tested in a US court.
And if Microsoft's FAT patents get tested in court, it's quite possible that those patents might be invalidated.
Microsoft failed to enforce its patents on the hoary FAT storage system for many years, instead benignly permitting hardware and software vendors to use it for removable storage media of all kinds, from the old 5.25-inch floppy diskettes through the later 3.5-inch 'hard' floppy diskettes to USB flash keys and SD cards more recently. Because it had neglected to enforce its FAT patents for so long with so many companies, Microsoft might find it hard to start doing so now.
It's somewhat analogous to what happens when a company fails to defend a tradename, in which case the tradename loses its proprietary character because it already entered the public domain. Patents don't work quite like trademarks, but the courts still take a dim view of companies that let many others employ their patented methods without paying any royalties for a long time and then suddently try to start collecting royalties.
Those FAT patents are also weak, as in crippled. Back in 2004, the Public Patent Foundation challenged them at the US Patent and Trademark Office, based upon prior art, and the US PTO ruled them invalid. Microsoft appealed and, following a one-sided hearing in 2006, the US PTO reversed itself and reaffirmed the patents. But the damage had been done, and the same prior art evidence can be brought up again, so those patents might well fail to stand up in an adversarial court proceeding.
Indeed, the German Patent Federal Court ruled these same Microsoft patents invalid and unenforceable just a year ago. Microsoft's FAT patents are also being challenged in Canada.
The most serious threat to Microsoft's FAT patents, and really all US software patents, however, is the recent US Court of Appeals decision in In re Bilski, which more-or-less destroyed the entire concept of software process patents.
Basically, the court ruled in Bilski that software is not patentable subject matter if it is not inextricably tied to an associated 'apparatus', that is, a unique machine (explicitly not to include merely a general purpose computer), or otherwise does not define some action that is 'transformative' somehow. The definition and limitations of what and how software might be deemed to be 'transformative' remains to be determined with more clarity in subsequent court decisions, but software patents clearly have been weakened considerably within the US court system, if not quite yet demolished outright.
Microsoft can't seriously believe that its FAT patents will survive a real court challenge. Not only has evidence of prior art been produced on the record, but there's also the other major patentability issue of obviousness that these patents might not be able to overcome.
Perhaps it's just playing poker with these complaints against Tomtom, betting that the smaller company will fold and agree to licence all eight of its software patents rather than defend itself in court. Microsoft might have tacked on these FAT patents in order to rattle its sabres at Linux a little, thinking that if Tomtom agrees to licence all eight of its patents listed in the complaints then that will shore up the perceived viability of its FAT patents and, by implication, all of the other software patents it has vaguely claimed - without specifying or describing any of them - that Linux infringes.
However, if Tomtom defends itself against these complaints, Microsoft might find itself having to drop its FAT patents from its lawsuit in order to prevent them from possibly being invalidated by the court. In that event, it's going to be obvious that Microsoft doesn't like its chances of upholding those patents, and that cannot help but call into question all of its other software patents too.
That would be a strategic disaster for Microsoft in its ongoing anti-Linux FUD campaign. (Source, IT Examiner: Robert Munro)
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