MS v Linux: Sparks of the Tom Tom Fire stubbornly refuse to die

In course of the last decade, every once in a while Microsoft has been known to have accused Linux of infringing one of its patents or another. Despite the said multiple claims for years that elements of the open-source operating system violate its patents, Microsoft had restricted itself till 2009 to supporting legal action against Linux (for instance, the infamous alleged funneling of money by Microsoft to SCO so as to fuel the latter’s lawsuits against IBM and other Linux-user companies). Simultaneously with such actions, Microsoft has not restricted either its alliances with the said companies, including its partnerships with Novell and Red Hat.
Matters had come to a head, however, when Microsoft filed a suit against the GPS navigation device vendor TomTom International BV in the U.S. District Court in Seattle in February, 2009, alleging that the in-car navigation company’s devices violate eight of its patents — including three that relate to TomTom’s implementation of the Linux kernel. Following is the link wherein the text of the complaint can be found:
Five of the alleged patent violations related to proprietary software, relating to in-car navigation technologies, while the other three involved file-management techniques, with Microsoft virtuously maintaining all along that open-source software was not the intended focal point of the action. Despite the case having taken an even more interesting turn when TomTom countersued Microsoft and joined the Open Invention Network (OIN), an open-source patent protection group, matters came to rather an abrupt end on March 30, 2009 when the parties surprisingly agreed for a mutual settlement. In return for an undisclosed licensing fee, TomTom has been given leave to use Microsoft’s patents.
The matter becomes murkier, however, when one pays attention to a statement from Peter Spours, TomTom’s director of IP Strategy and Transactions, who said that the said settlement agreement has been drafted in a way that ensures TomTom’s full compliance with its obligations under the General Public License v2, and thus reaffirms its commitment to the open-source community. No explanation was forthcoming, however, as to how exactly can TomTom both use the rights granted under the patent and conform to the GPLv2! As per the claim advanced by the companies, the agreement includes patent coverage for Microsoft’s three file management systems patents provided in a manner that is fully compliant with TomTom’s obligations under the GPLv2. At the same time, TomTom will remove, within 2 years from its products, the functionality related to two file management system patents (the ‘FAT LFN patents’) that enables efficient naming, organizing, storing and accessing of file data. During the said period, the agreement provides for coverage directly to TomTom’s end customers under the said patents. This may lead to TomTom technically using the Microsoft FAT LFN (File Allocation Table/Long File Name) patents for the next two years, but it won’t be actually using the features of those patents, which may imply that TomTom will be replacing the long file name support provided by these patents with a different technology that does not belong to Microsoft.
However, the settlement is far from successful in calming down the much-agitated open-source legal community, with the legal issues involved being still undecided. In effect, this settlement ends one phase of the community’s response to Microsoft patent aggression and begins another.It may be interesting to note that a continuing litigation will have subjected Microsoft’s patent claims to a rigorous ‘prior art’ search to which the company may have been unwilling. If that’s the raison d’etre of this settlement, then Microsoft still has many battles to resolve, particularly with OIN having taken the first step towards invalidating Microsoft’s patents that were asserted against TomTom with regard to its implementation of the Linux kernel. The said patents have been posted by OIN on its patent defenders website in order to search for relevant prior art that can invalidate Microsoft’s patents. If instances of prior art can be unearthed, then the same will undoubtedly be used to defend any future infringement actions of Microsoft against the Linux community.
Shouvik Kumar Guha

Shouvik Kumar Guha

Shouvik is at present employed as a Research Associate and a Teaching Assistant at The W.B. National University of Juridical Sciences, Kolkata. He has obtained his B.A. LL.B. (Hons.) degree from NUJS itself and is also currently pursuing his LL.M. degree from the same university. From his very year at law school, he had been attracted towards the discipline of Intellectual Property and that interest has been kindled further in course of time. The interface between IP and other disciplines such as Economics, Anti-trust Law, Human Rights, World Trade Law and the technological developments relating thereto, has especially caught his attention since then. He’s authored several papers on issues relating to IP and other legal disciplines for journals, books, magazines and conferences in national as well as international levels. He is also currently co-heading an organization called Lexbiosis, which is an endeavor meant to facilitate the collaboration between the legal industry and academia.


  1. Avatarr_a_trip

    No explanation was forthcoming, however, as to how exactly can TomTom both use the rights granted under the patent and conform to the GPLv2!

    There can only be one explanation and that is the Microsoft-Novell loophole. MS has probably covenanted to TomTom not to sue TomTom’s customers and TomTom pays MS handsomely for that promise. Since patents are not like trademarks, MS loses nothing if they don’t sue TomTom over infringement. TomTom has nothing to fear and can keep the infringement in place, because they know their customers are indemnified by the covenant.

  2. AvatarAnonymous

    This was damage control: TomTom knew how this was going to go (or end) so they joined OIN. This in turn (they hoped) would fend off anyone going (as stated in article), “wait a minute, how does this not invalidate GPLv2?”… Who knows, perhaps the OIN or SFLC will say, “if you want to stay GPL, we need to see the agreements!”

  3. AvatarBiju

    This issue gets resolved as Microsoft has joined Open Invention Network and Tom Tom is also part of Open Invention Network.


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