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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.
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.
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.
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.
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.
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.
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.