Bruce Perens: Analyzing Microsoft's TomTom Lawsuit

Sunday Mar 1st 2009 by Bruce Perens
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An open source advocate looks inside Microsoft’s lawsuit against TomTom, a case that involves an implementation of the Linux kernel.

About the Author: Bruce Perens is the creator of the Open Source Definition, the manifesto of Open Source and the criterion for Open Source software licensing. Perens represented Open Source at the United Nations World Summit on the Information Society, at the request of the United Nations Development Program.

Microsoft has brought a lawsuit against car navigation system manufacturer TomTom. The products in question incorporate Linux, and at least one of the seven patents involved concerns a Linux kernel implementation rather than TomTom's own software. Is this Microsoft's first direct salvo against Linux?

There are other striking features of this suit: the technologies claimed in the 8 patents involved are so old and obvious that it's fair to say they have a high "Duh!" factor. There's an anti-trust angle to this suit that could blow up in Microsoft's face. And there's a high probability that some or all of the patents involved are invalid, due to recent court decisions.

Is this a serious suit, or an effort to stir up fear, uncertainty, and doubt about Linux at a critical time, when government and industry is taking up Open Source in a big way? TomTom has shallow pockets, relative to Microsoft, pockets that have already been drained by other lawsuits. Will TomTom have to settle and license regardless of the validity of Microsoft's patent claims, rather than drop $10 or $20 million in defending themselves?

Let's take a close look at what's happening.

The Lawsuit and Patents

Microsoft's complaint mentions 8 patents:

  • 5,579,517 Common name space for long and short filenames.
  • 5,758,352 Common name space for long and short filenames (again).
  • 6,175,789 Vehicle computer system with open platform architecture.
  • 6,202,008 Vehicle computer system with wireless internet connectivity
  • 6,256,642 Method and system for file system management using a flash-erasable, programmable, read-only memory.
  • 6,704,032 Methods and arrangements for interacting with controllable objects within a graphical user interface environment using various input mechanisms.
  • 7,054,745 Method and system for generating driving directions.
  • 7,117,286 Portable computing device-integrated appliance.

You might like to look at these patent filings and form your own opinion. Although their language can be opaque, it doesn't obscure the fact that there isn't much there.

A Monopoly on FAT

The first two patents are related to the FAT filesystem, which is the way that Microsoft stores files on disk. You might remember its eight-character file-names and three-character extensions, all capital letters, if you remember eight-track tapes and leisure suits.

For Windows 95, Microsoft implemented longer filenames that understood the difference between capital and lower-case letters, and that's the topic of these two patents. The "innovation" Microsoft claims is the use of a table to reference the long file names to the short ones, so that software that was written to use short names would still work, sort of. It just got funny mangled 8-character names. Like this:

Long Name Short Name
ALongFilename.txt ALONG%#.TXT
Microsoft's Amazing Patented File Name Table Innovation.

Now, why would anyone want to pay Microsoft for the right to use this lackluster technology? After all, there were better filesystems before MS-DOS came along, and there are much better ones today. It's not because of the technology, but because of Microsoft's dominance of the computer business.

FAT was the filesystem provided by Microsoft systems, and thus it was on nearly all floppy disks. Apple implemented FAT to be compatible with Microsoft. Later on, all USB sticks and SD cards had to use it if they were to work with Windows. So, most removable storage came preformatted with FAT out of the box. Others implemented FAT to be compatible with Microsoft, and it became the de facto "standard" for removable media. But a standard with embedded patents, for which Microsoft is now demanding royalties.

So, it's not the technology. Microsoft's market force as an effective monopoly in desktop computing made FAT ubiquitous, and Microsoft is able to muscle other businesses into paying a patent royalty for FAT despite its lack of innovation, only because FAT is what Microsoft chose to put in its own systems.

Next Page: A High Duh! Factor

"SD" Stands For "Shooting Downwards"

Not satisfied with shooting itself in the foot by getting its users sued just once, the SD Card Association has selected a later version of FAT, not compatible with today's systems, as the default filesystem on the upcoming larger SD cards. This despite the fact that those cards are going to have to run predominantly on embedded devices like TomTom and Amazon's Kindle, which have Linux as their operating system.

Wake up, SD Card folks! There are many Open Source filesystem implementations that are superior to the various generations of FAT. Many of them are under licensing that allows proprietary software to incorporate them, and are patent-free, or grant the appropriate patent rights without charge or discrimination.

SD Card Consortium shouldn't get away with incorporating a patented Microsoft technology, to the disadvantage of many prospective SD card users, when patent-free and technologically superior solutions are available off-the-shelf. We need an Open Standard, royalty free and without discriminatory licensing, for the next generation of removable media. Whoever develops that standard can save a lot of work by choosing an existing and appropriately licensed Open Source filesystem, and starting from there.

Here Come 'da Judge

Memo to Judge Colleen Kollar-Kotelly: I'm told you're looking at Microsoft's conduct regarding the settlement in United States v. Microsoft. Please look at how Microsoft is still using its entrenched monopoly status to drive royalties on the technically un-meritorious FAT patents.

Also, Your Honor, and anyone else who can do something about this: please consider how the SD Card Association and its ilk continue to drive royalty-bearing software patents of their members into de facto standard products like removable storage media, when there's no good technical reason to do so.

A High Duh! Factor

Patent 6,175,789 and 6,202,008 might be the ones with the highest Duh! factor in this lawsuit. Filed in 1999, they claim monopoly rights on the "innovation" of a general-purpose computer, in a car, that has an internet connection. That's all. Read the text, I'm not kidding.

I really wonder about the patent examiner(s) who thought these were an "invention," and what the patent office was asking of examiners that would lead to the approval of such trivial and obvious patents.

Should there be anyone who doubts that such a thing existed previously, consider that radio hams have had it since the '80's. The APRS system included a vehicle computer with a moving map, displaying the location of other, similarly equipped vehicles, starting in 1982 using Navy directional signals before GPS was available to individuals. It was extensively used in the early 1990's, as GPS reached the consumer, and continues to be popular today. Its interstate wireless digital network was going strong by 1984, long before there was an Internet that regular folks could access, and was gatewayed to the Internet as soon as that was possible.

This, folks, is what we call prior art in patent terms, and it obviously invalidates patent 6,175,789 and 6,202,008.

I'll let you read the other four patents. I think you'll agree that they do not represent significant innovation for the date they are filed. In each case, there was much existing prior art in the field at the time the application was made.

Absence of Validity

Do other legal issues potentially invalidate the software patents in question? Very likely.

The recent court decisions in the Bilski case and KSR v. Teleflex have substantially weakened software patents and overturned the case that made business method patents possible. The Public Patent Foundation (PubPat) had previously convinced the U.S. Patent Office to invalidate one of the FAT patents on prior art grounds, which means they convinced the Patent Office that the same thing had been made previous to Microsoft's patent application and wasn't an invention at all. Microsoft appealed and had the patent reinstated, in a patent-office proceeding where PubPat wasn't given a chance to speak. In the aftermath of that poor process, the judge in Microsoft v. TomTom will have the power to invalidate that patent permanently, based on the same prior-art evidence that PubPat presented. So this case, if allowed to proceed, could be of great advantage to Linux and Open Source by putting the FAT patents to bed permanently.

Next Page: What Should We Do?

Justice Goes To The Deepest Pocket

But will there be a case at all? TomTom's CEO mentioned in a 2008 speech strongly critical of software patenting (video) that in 2005, the company had spent more on patent litigation than all of their other activities combined. According to the patent lawyer's own professional organization, a single software patent infringement case could cost upwards of USD $5 Million to defend. That's what it costs even if you win the case. TomTom must now defend itself from eight patent infringement claims.

Smaller companies are often forced to license a patent that is likely to be invalid, rather than pay the terrible expense of proving themselves to be right. This means there is rarely justice for anyone but the very richest companies where software patents are concerned.

So, why do we have software patents at all? The general consensus in the industry is that they don't fulfill their constitutional purpose, to encourage innovation, but actually hinder it. They tend to work in favor of a few of the very largest companies, against the small and medium-sized enterprises that make up the vast majority of the tech economy. Thus, they don't make economic sense.

Is This The First Shot? (Or Just More FUD?)

I asked if this was the first direct shot at Linux from Microsoft. But perhaps their patent agreement with Novell, which appeared calculated to circumvent the terms of the GPL license and raise the cost of Open Source above $0, was the first shot. After the Open Source community made a strong showing against Novell for agreeing to the terms, Microsoft's move was ineffective, and a recent Microsoft agreement with Red Hat included none of the odious terms that Novell took on.

Another possibility is that Microsoft knows it can't win this time, but has brought this case to spread anti-Linux FUD in the news at a time when Linux is making critical gains against Microsoft. For example, the United Kingdom government recently announced it will strongly encourage Open Source for its own IT procurement. TomTom is very popular in the UK. This case is already being heavily reported there, and will become a speaking point for those who oppose the government move.

What makes me think the case might be a FUD move, rather than something real, is that Microsoft would probably lose if there were a close examination of these patents. So, they can't afford to let the case proceed. I suspect that Microsoft is betting that TomTom will settle, and thus bolster the patents’ weak position publicly through its acquiescence. Another possibility is that Microsoft is willing to trade the PR value of front-page FUD today for a mostly un-noted loss on back pages next year.

A Wolf in the Fold

Perhaps you've noticed Microsoft's recent efforts to participate in Open Source, and all the noise they've been making about it. This case should be a lesson to the Open Source developers around them: Microsoft still doesn't understand what Open Source is about, or they'd not be suing anyone over the implementation of their ancient filesystem in Linux.

They have not turned over a new leaf, and still remain insincere about their involvement in Open Source. The Microsoft employees that Open Source projects directly deal with are as sincere as you'd like, but they aren't top management and can't influence top management. Don't ask them for much in the way of promises, they are liable to be repudiated by those higher up. I doubt many Open Source projects were about to trust Microsoft, but that won't happen now.

I don't believe Microsoft was ever attempting to be sincere. A perceived involvement in Open Source by Microsoft, along with highly paid mouthpieces like Novell to chime in for them, is giving Microsoft the ability to speak for Open Source in government circles, short-circuiting the legislation we need to defend ourselves from software patents or to establish a level playing field on which Open Source and proprietary software can compete fairly. That's their true interest.

What Should We Do?

We've managed to hold enforceable software patenting off, for the most part, in Europe. But we've not had the same success in the U.S. Now, it's time to follow up the Bilski case with legislation cleaning out the software patent system. Developers need to be able to make and sell software without the threat of patent-related extortion. We must unite both proprietary and Open Source developers - who are equally at risk - to work for this cause, if we're to have a hope of being heard by legislators.

Bruce Perens is a popular keynote speaker on Linux, Open Source, and technology policy. He is a strategic consultant to government and industry. He can be reached at 510-984-1055, or via email to bruce at perens dot com.

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