Microsoft being FAT headed?

Hot off the heels of Bilski, there’s a new interesting, (though confusing) development in the software patent world. There has been a long-standing tension between the open source community and Microsoft, especially after Microsoft previously claimed the Linux and other open-source programmes violated more than 200 of its software patents. After years of threatening action over allegedly infringing elements of Linux, the open-source operating system, Microsoft has finally decided to approach U.S. District court in this regard.

Microsoft claims 8 patents were infringed by portable GPS device maker TomTom, which used Linux in its device. Five of these patents deal with in-car navigation technologies, while the three others which are allegedly violated by TomTom’s linux kernel relate to FAT (file allocation table) file-management techniques. Gutierrez says that licensing agreements have been reached with the other in-car navigation vendors over the same patents. According to TechFlash,

The case, in U.S. District Court in Seattle and the International Trade Commission, is the third time Microsoft has brought such a suit, said Horacio Gutierrez, Microsoft corporate vice president and deputy general counsel for intellectual property. Both of the previous suits settled after they were filed. By comparison, Microsoft has struck more than 500 patent licensing deals in the past five years.

Microsoft claims that this isn’t about taking on Linux or open-source, with Horacio Gutierrez, Microsoft’s corporate vice president and deputy general counsel of intellectual property and licensing, saying that while “three of the infringed patents implicate open-source code … open-source software is not the focal point of this action”.

Microsoft is claiming that they are not targeting Linux itself, but rather that they are only targeting the TomTom specific implementation of Linux (which, according to some sites, is a meaningless statement, as there is nothing TomTom specific about its implementation of the kernel)

That apart, it’s a little strange that Microsoft is choosing the FAT patent to defend in court for a variety of reasons. Firstly, there is the Bilski decision, due to which EndofPatents is calling the action a wet rag rather than a sword . Post-Bilski, the USPTO’s Board of Patent Appeals and Interferences (BPAI) have started handing down some relevant patent rejections, including the rejection of one of IBM’s database query patents because it wasn’t a ‘hardware patent’, ie it was not tied down to a particular machine. Taken from one source :

“The BPAI goes on to justify the rejection by pointing out that the “system” on which the innovation operates is “not recited in terms of hardware or tangible structural elements”, which is to say that the patent is rejected because the elements of the claim are “implemented solely in software or algorithms”. Does the FAT patent about converting long filenames to short filenames sound like it would pass any of these tests?”

And putting their FAT patents up against this test seems a little more than risky, considering that these don’t exactly seem to be ‘tied down to hardware’ in any manner. In fact, the site also seems to indicate that Microsoft has in fact stated that their technology is running on all sorts of devices.

Techdirt also points out an ‘ITC Loophole’ that Microsoft seem to be using. The ‘ITC Loophole’ essentially allows a party to take two bifurcated attempts at getting an injunction against the other party. Aside from proceeding in court, a party can also simultaneously approach the US International Trade Commission claiming that the goods in question were part of ‘unfair trade practices’ and that an injunction should be granted against importing them into the US. It should also be noted that the ITC is not bound by the Supreme rules either, thus giving any party two clear and separate shots for obtaining an injunction against the same good/product.

It’s ironic that this action comes in the wake of Microsoft’s recently proclaimed Free-Software Friendly approach. In fact, just recently, Microsoft had signed a partnership deal with RedHat. However, this development will send across a signal of insincerity to the open source society. Some are even going as far as saying that Microsoft’s involvement with the Open-source community is a ploy in order to gain leverage for them to speak on behalf of the Open-source community in government circles.

Seeing the position which Microsoft seems to be approaching this, Steven Vaughan-Nichols from computerworldblogs puts up another theory. With the ‘weak’ patents it’s protecting, the European anti-trust division back on the hunt for them; and broken start this provides to the initiative it had begun with the open source society recently, he doesn’t see the sense in this approach by Microsoft. What he theorises is that perhaps instead of getting them to sign a patent-licensing agreement, Microsoft is actually trying to acquire them.

“Microsoft has long wanted to get into automobile embedded systems with their Windows Mobile operating system. Their attempts haven’t gotten anywhere fast. The company would also like to get some traction into the suddenly hotter than hot location software business. Google, with its Latitude software, has shown that people are really interested in location-based programs.

Were Microsoft to acquire TomTom, they’d instantly solve those two problems. If they could get the merger done fast enough, they might even have a chance to drop the lawsuit and get open-source companies to forget that Microsoft is not now, never has been, and never will be, open-source’s friend”

A look at some of the patents also reveal some interesting facts. Two of their patents filed in 1999, give monopoly rights to the simple (and innovative?) combination of a computer, a car and a wireless connection. Then, there is also the question of the validity of Microsoft’s patents in the first place. With Bilski and KSR, the position of software patents have been substantially weakened. In addition to this, the Public Patent Foundation had earlier successfully approached the U.S. Patent Office for the invalidation of one of the FAT patents in question on grounds of prior art. However, the procedure that this was followed up with seems questionable, since on appeal the Public Patent Foundation wasn’t given a chance to speak at the patent office proceedings. This means that the judge will now have the power to permanently invalidate that patent – if this case is allowed to proceed and is not settled.

For those interested in checking on them, the patents involved are 6,175,789(Vehicle computer system with open platform), 7,054,745 (Method and system for generating driving directions), 6,704,032 (Methods and Arrangements for Interacting with Controllable Objects within a Graphical User Interface Environment Using Various Input Mechanisms), 7,117,286 (Portable computing device-integrated appliance), 6,202,008 (Vehicle computer system with wireless internet), 5,579,517 (Common name space for long and short filenames), 5,758,352 (Common name space for long and short filenames, again), and 6,256,642 (Method and System for File System Management Using a Flash-Erasable, Programmable, Read-only Memory).

The complaints filed in the federal court and at the ITC have been made available by TechFlash here and here respectively.