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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.
Why do we get so many legal analyses on slashdot from non-lawyers?
Would there be any difference in how Microsoft handled this case if TomTom had used FreeBSD instead of Linux?
transporter_ii
Doctors destroy health, lawyers destroy justice, universities destroy knowledge, religion destroys spirituality
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....
Microsoft is evil.
Linux is jesus.
Richard Stallman, Linus Torvalds are my personal heros.
Microsoft is evil.
Microsoft likes to take control of the industry.
This is the year of the linux desktop.
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.
This type of law suit in which the righteous party is forced to settle because of legal costs is exactly why Microsoft needs criminal sanctions. It is also exactly why stiff punitive fines should be levied against Microsoft. Hundreds of billions would be appropriate.
I read the article, Microsoft contest their FAT patent. But why would anyone need a translation table from 8.3 FAT names to the longer versions, that was only for dumb Microsoft systems that needed this translation for backwards compatibility. There is no need for such backward compatibility these days surely, long filenames are used these days???
Take Nobody's Word For It.
Is there an equal position for Microsoft and OpenSource community in the court? - Definitely not! OpenSource community should ask in the court to review Microsoft's initial position which is not fair ! OpenSource has their source open to the entire world, so even Microsoft can sneak for possible "patent breaks", but Microsoft has CLOSED source code, so nobody knows - are there any patent breaks or not. Is this equal position: if one player play with open cards, but another has rights to play with closed cards and asks judge to look closer only that player with open cards? At least at the court both parties should be equal and should come up with source code just because of there is no other options.
...and calls it essentially a paper tiger
It's really simple to fight then. They need a scissor lizard!
I know this wasn't what you were getting at, but he didn't say Linux has nothing to worry about (did you read the article?). Even if there isn't much substance behind the patent claims themselves, the article points out there is still plenty to worry about with these kinds of cases.
Actually, even as a non-attorney, Bruce Perens does have quite a bit of legal background. You can read all about it in Bruce Perens' online resume
My blog
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.
I didn't say that, and you didn't read the article, so kindly go do so and say something more clueful next time.
Bruce Perens.
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.
It's hard to argue with this, even for MS apologists. When everybody is almost forced to use a system that you invented just because you invented it first, they shouldn't be able to use the legal system to strongarm you with it.
This game will waste your life. Don't clicky!
isn't "inventing it first" what innovation is?
If you mod me down, I will become more powerful than you can imagine....
"Screw the money, I have rules. Wait, what?"
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.
Yes. I've been trying to get other people to think about this for 10 years or more.
Bruce Perens.
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.
all i heard was blah blah blah.
I'd consider getting new text to speech software then.
My pics.
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.
than the EFF.
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."
TomTom is the only major non-Windows GPS. All the other big names are WinCE based.
Message to all vendors of small systems, use WinCE or face the consequences.
Some say this has already happened: The ones who held up RIM and threatened to shut down Washington's BlackBerrys. Even THAT case didn't trash the US's fucked-up patent system.
http://rocknerd.co.uk
The TomTom I have carries a plain vanilla SD card. Any bets that it came from SanDisk (or wherever) already formatted with FAT32? I think SanDisk was one of the companies strong armed by Microsoft a while ago into buying a FAT32 license. Therefore, shouldn't the license to use said card transfer downstream? Or is it that nobody can write to a FAT32 partition without a further license? Microsoft will have its hands full if it's the latter - when The Planet attacks Microsoft in court like the RIAA.
Most of the stuff on
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.
Second link on "gpl court germany". Harald Welte, of course, kicking D-Link's arse.
http://rocknerd.co.uk
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!
Yeah, they're soooo much juicier, don't you know!
I think his point was that Microsoft approaches open source in bad faith. And it's true. Mono exists because of the Novell/Microsoft pact, which was an early step in a long-term strategy to use patents to destroy the GPL ecosystem.
Microsoft paid Novell to add legitimacy to its patent threats. Novell funds mono development. It's perfectly reasonable for GP to conclude that Mono is poisonous.
Precedent doesn't matter much in this instance. What matters is a challenge with the patent office (this costs an average of 5 million), the chances of the patents being upheld seem pretty small post bilski, at least the FAT ones (the others I don't know enough). But the law prevents judges from tossing a patent out, even when its blatently illegal, so instead of a moderately expensive publicly subsidized court battle (and appeals), patent cases end up being massively expensive for profit exercises mostly run by the patent office, *then* you get to do a round of appeals, depending on the outcome.
Once a patent is tossed out, MS can't use it anymore, but they have 227 others, so this is gonna be a long fight.
On the plus side, Tom Tom is probably going to fight if they aren't run by complete morons, otherwise they would have at least negotiated with MS.
Liberte, Egalite, Fraternite (TM)
The free software foundation sent out this email to their subscribers on the 28th of February
Looking at Microsoft's FAT patents through Bilski glasses
http://endsoftpatents.org/looking-at-microsoft-s-fat-patents-through-bilski-glasses/
Yesterday, Microsoft attacked free software and GNU/Linux users with
software patent claims against the TomTom Navigator and its
implementation of the FAT file system. But do they have a sword or a wet
rag?
With widespread support for GNU/Linux becoming a reality, are these
patent claims an attempt to chill adoption? If so, then we need to make
sure everyone knows about Bilski. Please read this story and use digg to
help raise awareness:
http://digg.com/linux_unix/Looking_at_Microsoft_s_FAT_patents_through_Bilski_glasses_2
Sign-up or ask friends to join our End Software Patents mailing list to
get these alerts:
http://campaigns.fsf.org/cgi-bin/mailman/listinfo/esp-action-alert
Thanks
Our culture doesn't get smarter, it just finds new ways of being retarded.
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.
The Google G1 phone uses a 2gb SanDisk micro SD card. Lets see Microsoft pick on someone its own size.
Here's a list of Companies whose products write FAT32:
They could band together now and de-fang this nonsense.
Most of the stuff on
I (...) am no longer convinced that microsoft is a gentle giant
"I am no longer convinced that the 'Mission Accomplished' banner was a good idea." -- George W. Bush
"I am no longer convinced that the Titanic is unsinkable." -- Thomas Andrews
"I am no longer convinced that striking explosives with an iron bar is a wise practice." - Phineas P. Gage.
Rich And Stupid is not so bad as Working For Rich And Stupid.
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
OF course Microsoft is defending FAT32 - I mean it's one of the new supported features of Windows 7!