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Analyzing Microsoft's Linux Lawsuit
jammag writes "Open source advocate Bruce Perens takes a close look at Microsoft's lawsuit against TomTom (discussed here last week), which involves an implementation of the Linux kernel, and calls it essentially a paper tiger. He notes: '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.' Although the legal expense for TomTom to defend itself in court could be astronomical — meaning they may be forced to settle — in Perens' view Microsoft is aware its case is weak, yet hopes for a PR victory at limited cost." And reader nerdyH adds speculation from Open Innovation Network CEO Keith Bergelt that Redmond's action could be retaliation for TomTom's spurning a Microsoft acquisition bid in 2006.
I was reading one of the patents involved earlier today and it claims to patent the installation of a computer for navigation, and word-processing (of all things) in a car. So if I get my laptop and stick it on the dash board have I violated there patent? Seems a bit dumb.. However....I know nothing about the law so....
Tom Tom, from what I've read, has been a bad open-source citizen. Nevertheless, all Linux users have a shared interest in defending Linux against FUD. It would be so cool if the Linux community swarmed this problem. "The enemy of my enemy is my friend" seems to apply here. If MS is squashed here, there much less likely to go after even smaller businesses and people.
considering Bruce Perens consults on avoiding licence issues for a living we can take his words seriously.
I know this is a bit vague, but as we already have initiatives for collecting of patents could there be a pool of cash collected from donors (as in small amounts of monthly donations from any interested individuals). Any company could then fight patent trolls by then putting in a nominal amount into the fund and getting support from the fund to protect its self against bodies trying to sue it. The threat of having to settle despite a week claim would then disappear, and Linux would be helped.
Maybe MS could be nailed for discriminatory patent licensing if we find that, say, TomTom is the only unlicensed infringer being targeted?
I dunno...
This case of david versus goliath sounds worthy of the EFF's attention...or soemthing.
Tomtom needs help, not because he's right, but because he's an ally.
MS is up to no good here, as usual.
1) If MS wins, FAT implementations will get smacked down quickly due to the effect of a cascading precedent. This includes linux mounting a floppy disk OR a flash drive OR a camera OR... need I go on?
2) If MS forces a favorable settlement, the chill factor will freeze out competitors
3) If MS settles out, we get nothing
4) If MS loses the case, we have victory.
Anyone who can call MS out as bullshit and back it up, get in touch with TomTom AND his lawyers post haste.
Inventing something is innovative, but actually using an invention for a practical purpose is even more innovative.
Patents, however, basically say that you are not allowed to do what you want with your own hands, simply because someone else came up with the idea first. Even if you both invented the same thing on opposite sides of the country, but one of you filed first, you can be screwed.
IANAL but IMHO, TomTom's lawyers should:
1) request to deposition all the individual inventors named in the patents;
2) inform the inventors that they should have independent legal representation, since submitting false claims to the USPTO is perjury, a federal crime in the USA;
3) at the deposition really closely grill each inventor over each patent's prior art and obviousness;
4) then ask the inventors what advice Microsoft's patent department and lawyers gave to the inventors regarding each patent's prior art and obviousness ( Lawyer client confidentiality is not necessarily a two way street );
5) start building a case for the disbarment of any of Microsoft's lawyers who gave any advice or prodding to the inventors to ignore existing prior art and obviousness;
6) re-write many Microsoft's patent claims in technical English ( removing legal patent jargon ) and publish the result;
7) put out a call to the technical community for written and signed statements regarding the obvious nature of the patent claims;
8) fully publicise the outcomes of steps 1-7.
I think there are many of us out there who would toss a couple of hundred to TomTom for a device specifically designed and stated where the profits would go to fund the fight to put Microsoft in its place.
If they settle then this is exactly how I and many others said would be the way Microsoft attacks GNU/Linux with their fake patent threats.
LoB
"Anyone who stands out in the middle of a road looks like roadkill to me." --Linus
I don't think Microsoft really cares if they win or lose this lawsuit. The message has been sent to new upstarts, either you pay microsoft their tax or face death by lawyers.
IANAL, but i'll play dirty (as if I was a lawyer) and walk you through why that wouldn't work.
...Profit?
1. Microsoft, as a corporate entity would only need to supply a witness with sufficient relevant knowledge and/or duties relating to the patents. I.e. if the inventors are no longer inventing, they could bring in an intern who's maintaining the file system (or other tech grunt/manager), even if the inventor is currently a VP of file systems or some such title.
2. Scare tactic, unless you're bringing charges (costly and veeeeery hard to prove) against the inventor, it doesn't fall under the umbrella of the case at hand.
3. Bob the fat32 intern wouldn't know about prior art or the obviousness and would state the ever so annoying "I don't know".
4. Client attorney privilege is pretty much regarded as sacred, however, on the rare chance that they are forced to turn over this privilaged and confidential work product (another buzz word meaning 'you'll never get to see it, ever'), it might be gone forever unless its on paper or in email (and paper or email from 10-15 years ago is legally allowed to be purged in accordance with policy, Microsoft is not a bank) a simple "I can't recall" or "I'm sure I would not have {given advice to break the law}" would suffice to disarm the question.
5. See above.
6. Ok, done, so now what?
7. There, finally you're on to something, but I suppose you got this from a prior article on slashdot where a company put out a call to the technical community?
8.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
According to the assistant director of the patent office, they haven't prosecuted a perjury case since 1974. They shut down their enforcement department. So, if you lie, all you can lose is your patent. And someone else might have to spend millions, and kill his own company, to make that happen.
It seems that every part of the system is engineered to reward the person with bad intentions.
Bruce Perens.
Per TFS, TomTom may be forced to settle. Given that if they do, it means MS can go after others using linux (Motorola, Nokia and others). Wouldn't it make sense for companies who rely on linux for their business to somehow help out TomTom to prevent MS getting a precedent they can use in the future?
IANAL so I dont know how these things usually work.
But TomTom has gone much farther than trying to use the ideas.. they are implementing the file system verbatim for obvious (its a standard, be compatible) reasons, and thats much worse than simply working off the ideas.
..certainly cannot blame Microsoft for trying to defend a patent that was granted to them, especialy if the abuser is in direct competition in a marketplace. If this was NTFS the situation would be a little more clear, but because its "the standard" FAT32, some people cannot see the similarity.
We can argue all day long that anything FAT32 shouldn't be patented from a moral standpoint, but at the end of the day there are numerous patents related to FAT32 that are still on the books, unexpired.
TomTom chose FAT32 for economic reasons.. they should have to pay the costs of that choice.
"His name was James Damore."
Except some of us lawyers didn't begin as drunken poli-sci majors, we began as Comp Sci majors. And some of us might still think sladotters are arrogant in their assumptions re: legal issues.
Seriously, you don't just start commenting out parts of code when something doesn't work, do you? No, you try to understand it first and then try and debug it. From the comments I've seen over the last several years, slashdotters have done little to understand legal matters and instead spout vitriol from their soapboxes, coming across no better or of more reliable opinion on something outside their field than Richard M. Zealot.
While I don't think engineers would have any difficulty parsing the law - I didn't have any trouble with the materials in law school other than the outdated Rule Against Perpetuities - far fewer slashdotters have put in the time that is required to understand legal theory than those that comment (and often get modded +1 insightful).
Very good point. At the time of the Novell - Microsoft pact, I was arguing with Bruce here on Slashdot over how evil/ not evil it was and I generally sided with Microsoft. Well, not anymore. I've replaced Suse with another distro that does not have a pact with Microsoft, and am no longer convinced that microsoft is a gentle giant. It is clear that they are abusing their monopoly in this act. And I was a defender of Microsoft (at times) in the anti trust case in the late 90's. This is much much worse in my eyes than bundling IE with windows ever was.
Well.. maybe. Or Maybe not. But Definitely not sort of.
I'd think that a proper start on reform would be to enforce THAT particular aspect of the law. There should be appropriate punishments meted out for the people gaming the system like this.
Msft's patents are bogus, msft just patents obvious ideas, or other people's ideas, in order harass any real competition. If msft can not win through better products, then msft will win through barratry and extrotion. This is no different than the scox scam.
There's also the fact that most lawyers know that giving any kind of legal opinion based on someone's article (or worse yet, a summary) is a mug's game. I'm in law school, and I've noticed that some of the hardest concepts for us new students to internalize is that
1) matters like this are almost always more complicated than they appear to be from the outside,
2) there are likely unseen (by us) details that may be crucial in determining the case,
3) ultimately, the law is what a judge and jury says it is (within certain limits that vary depending on circumstances), and
4) there are many, many situations where there isn't really a right answer.
Lawyers learn painfully that in a situation like this, looking in from the outside, one has to make so many assumptions about facts, law, etc, that an opinion rendered here is practically meaningless. With that being the case, why bother stating anything here more complicated than a basic background of the law? Especially when your opinion is going to be accorded a great deal of weight by the others here, which leads to the kind of problems you suggested to the GP.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
I've said it before: this case is probably not about the patents at all. MS have been mapping the Earth in great detail during the past years, and now they want to take over the navigation business. What better way than to first eliminate their competition, either by buying it or, if that doesn't work, by suing it into oblivion?
-- Cheers!
Whether M$ is wrong or right, it makes sense for them to start with a weak defendant and nonimportant patents. If they win because they are big and Tom Tom gives up, they establish a precedent that being a monopolist does not prohibit their asserting patents to crush a smaller competitor, and they start to build a bedrock of patents that are fire-tested and fire-proof. By taking gradual steps M$ may do successfully what it could not by locking horns with Big Blue.
Those are my principles, and if you don't like them... well, I have others.
The Google G1 phone uses a 2gb SanDisk micro SD card. Lets see Microsoft pick on someone its own size.
-1 disagree is not a modifier for a reason. -1 troll, flamebait, redundant, overrated are NOT acceptable substitutes.
What prevents TomTom to format their device with another filesystem (e.g. ext2/ext3, ...) and deliver a windows compatible driver in their installation package?
Almost all hardware out there comes with installation media and drivers for Windows and/or Mac. Why not have that filesystem driver included, and get rid of FAT once and for all?
Regards..
Its interesting that Microsoft won't go after TomTom's biggest competitor, which also makes Linux devices. Garmin also has Windows based devices (I have one) though.
Yeah what kind of crazy system rewards the people who invented something and gives them some control over their invention?
Hah!... however, Microsoft allowed and encouraged adoption of FAT32 for a very long time, without consequence to anyone who did so. Because of their behavior, some smart lawyer could probably make a case that FAT32 is now public domain.
Most of the stuff on