Battle Ended – Smoke Not Clearing

As we mentioned back in February, Microsoft has sued Dutch GPS device and software manufacturer Tomtom over – among other things – Tomtom’s use of GNU Linux; specifically a Microsoft-developed file-system component within GNU/Linux,  FAT. In our previous post we speculated that the Open Invention Network might play a role in this drama and indeed on the 23rd March, a few days after they countersued Microsoft over Microsoft’s alleged implementation of Tomtom patents in their  own products, Tomtom became a member of the OIN family. A week later, Tomtom and Microsoft announced that they were settling their disputes. Unfortunately the detail of the settlement is not public, beyond the information in the Microsoft announcement. Of greatest interest to the free and open source software community is precisely how the deal interacts with Tomtom’s responsibilities under their licence to distribute GNU/Linux, the GNU General Public License (GPL) v2. Section 7 of the GPL has this to say:

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues),conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you,  the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

What this meant for Tomtom was that if they settled with Microsoft by – say – agreeing to pay them 1p for each copy of GNU/Linux they distributed, then they would in fact have invalidated their licence to distribute GNU/Linux at all. The GPL v2 insists that either the code it covers goes out with no additional encumbrances or it doe not go out at all. Now Microsoft is very aware of this provision. Their cross-licensing deal with Novell – detailed in an OSS Watch blog post here – was structured precisely so as to avoid this consequence. Many in the free and open source community feared that Tomtom would strike a similar deal with Microsoft, and fans of the lastest version of the GPL, v3, announced Microsoft’s actions in this case should act as a ‘wake-up call’ for developers to begin using the licence, as it includes changes designed to make such deals apply to the entire community if they exist at all. In the event, it would seem from the information we have that Tomtom has avoided emulating Novell, and has instead agreed to remove the FAT components from the version GNU/Linux they distribute on their devices within two years. This strongly indicates that Tomtom have accepted no licence from Microsoft relating to GNU/Linux itself, and Microsoft have agreed to just give them breathing space to remove allegedly infringing components, rather than insisting they take a licence.  So – a happy ending for all concerned? Not really. Microsoft must be pleased, as they have managed to give the appearance of winning a battle in which they were accusing GNU/Linux of infringing on their patents while not actually having to suffer examination of the validity of their patents in court. The free and open source software community is left wondering whether the FAT patents could be used against other distributors of GNU/Linux. Jim Zemlin, Executive Director of the Linux Foundation, seemed to be calling on developers to cut FAT implementations out of their software altogether. A couple of days ago, OIN announced the following:

…the patents used in the recent TomTom patent action have been posted by OIN for review and submission of prior art by the Linux community. Submissions may be made by visiting http://www.post-issue.org, clicking on the appropriate patent and selecting “Submit Prior Art”.

The Peer to Patent web site that OIN cite in that link is an initiative designed to allow the technology community at large to pool their collective expertise and thereby perhaps invalidate patents that ought not to have been granted. One way to invalidate a patent is to show that it was not innovative at the time the patent was applied for, that there was in the jargon ‘prior art’. The Peer to Patent site acts as a clearing-house for evidence of prior art on specific patents. In fact one of the FAT patents in question, 5,597,517,  has already been re-examined, provisionally invalidated, amended and then declared valid again after the Public Patent Foundation  or ‘PubPat’ (tagline: ‘representing the public’s interest in the patent system’) asked for the US Patent Office to take another look back in 2004. It will be interesting to see how far this pillorying of the Microsoft’s FAT patents will go towards their invalidation, given that this is their second re-examination.So another Microsoft patent case goes by and we are still no closer to knowing how justified Microsoft’s patent threats against Linux really are. Tomtom clearly found the effort involved in engineering out the FAT patents a worthwhile expense, but only tells us that it was likely to work out cheaper than the lawyer’s fees, and that Tomtom understandably had no interest in acting as a vanguard for the community on the issue. Perhaps the most reassuring thing for the community is that – so far – Microsoft has only claimed ownership of technologies which can be engineered out of GNU/Linux without breaking it.