CyberTech Rambler

March 2, 2009

Microsoft vs TomTom is quickly becoming Microsoft vs Open Source in the internet grapevine

Filed under: Uncategorized — ctrambler @ 6:26 pm

Whether Microsoft likes it or not, Microsoft vs TomTom is degenerating into Microsoft vs World on FAT. Since FAT is a widely use standard and open source uses it, it is quickly being seen as Microsoft vs Open Source, regardless of the fact that FAT is only one of the few issues in the lawsuit

A lot of people contributed their two cents. Quite a few, including PJ, offers the Blinski defense. To me, what is more interesting is what Boycott Novell digs out, i.e. Microsoft appears to have a covenant not to sue on FAT specification. If true, it is interesting on two points:

  1. Why did they sue TomTom knowing that there is a covenent not to sue? If TomTom assert the covenent as a defense, how will the court view it?
  2. I think if TomTom use it as a defense, we will see Microsoft counters by saying the covenant only covers the “unmodified” specification and TomTom modified it.

If (2) is what is going to happen, this will make the lawsuit even bigger as it puts into question the value of the covenent. Microsoft has been trumpeting this covenent as being open enough to satisfy European Anti-trust concerns and this has the potential of a back-firing on it.

Microsoft says it is not about Linux or open source in an Q&A with Tom Bishop, but TomTom’s modification to the kernel. However, read that reply carefully and you can say that he is avoiding answering the question directly.

Two people that I respect, Linux Foundation’s Zemlin said it is too early to tell whether is it really an attack on Linux and Updegrove said it is possibly has something to do with “new broom sweeps clean” syndrome at work and Microsoft trying to boost bottom line.

At present, I do not think we should take too much notice of it. Like Zemlin, I believe it is only a preliminary court document and it is going to be refine again after the discovery phase is done. Only if the claims against FAT remain after the discovery phase, then only should we start paying attention. A lot of things can happen between now and then. Not least, TomTom may settle.

Why do I doubt the FAT patent will be dropped? It does not serve Microsoft’s interest to litigate on the issue. First: It will receive so much scrutiny that it is quite likely to be declared invalid. On the surface it is difficult to see how one can claim a lookup table is not obvious. Second: Whatever the outcome, ligitating on FAT will means people take flights away from the FAT patent.

Reading the charge sheet against TomTom, I cannot help but think that the FAT issue is there to encourage TomTom to settle the case. Part of MS strategy is what IBM allegedly successfully pull it on SUN. From the Forbes article:

“OK,” [IBM rep] said, “maybe you don’t infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?”

Of course, if it gets publicity regarding Linux alleged infringement of Microsoft’s patent, it will be the icing on the cake.

I would actually like to see FAT litigated as I want the issue of whether the FAT patent is valid settled once and for all.

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