Some Sunshine on Shadowy Patent Threats: A Reaction to Microsoft v. TomTom

Red Hat is pleased to endorse the growing movement within the free and open source community of gathering prior art to undermine invalid software patents. We’re particularly pleased that Open Invention Network’s Linux Defenders has now invited scrutiny of the three patents that Microsoft used in the TomTom case to attack open source, as numerous public reports suggest weaknesses in these patents.

When Microsoft sued TomTom, Microsoft’s deputy general counsel initially contended that the suit was directed simply at TomTom, rather than more broadly at Linux. He declined, however, to rule out further attacks on Linux. If Microsoft’s objective was to build trust and confidence with the open source community, it failed miserably. The FOSS community reacted with outrage, and noted that they would not stand quietly by.

A few days later, the lawsuit was settled on confidential terms. There is no way to know how much Microsoft’s eagerness for a quick settlement was the product of the negative public reaction to the suit and the prospect of a counterattack. It may be that it will reconsider any further planned attacks on open source. We hope so.

It is unfortunate when a technology company decides that, instead of simply competing on a level playing field in the marketplace, it will devote its entrepreneurial energy to the patent protection racket. The trade is not an attractive one. It usually involves approaches to companies with limited resources who are bullied into signing non-disclosure agreements. Then, once isolated by confidentiality obligation from discussions with others, the victims are presented with a deal they can’t refuse. Even if the patents at issue are likely to be held invalid, the cost of a court case to prove as much could be ruinous. If the cost of license is less, it is not surprising that some conclude they have no choice but to pay for protection, regardless of the merits.

Thanks to the TomTom case, a patent threat is out of the shadows. Now that the three patents are publicly identified and easily available on Linux Defenders, those who are interested can assist the community by contributing their knowledge of prior art. We also expect the effort will not go unnoticed in Redmond.

And to that end, we offer Mr. Gutierrez a simple challenge: Provide the world a vista on Microsoft’s true colors toward open source–publicly promise that the patents asserted in TomTom that are being addressed by OIN will not be used by Microsoft for patent aggression against Linux.