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Microsoft Directs TomTom to Drop Dead

At the end of February, Microsoft [MSFT] brought suit against GPS company TomTom [TOM2] for several patent infringements pertaining to TomTom's Linux-based GPS navigation software. Now the Linux community is preparing for a fight, afraid that Microsoft will turn its snarling legal team on another member of the open-source community. But is Microsoft really trying to curb the use of the Linux kernel in software, or do they have a legitimate case against the struggling Dutch company?

Microsoft's eight-patent claim involves three Linux-related patents that most of us would hardly believe exist: the use of a multitasking computer in a car, using a wirelessly connected computer in a car, and creating long names in an MS-DOS file system. Microsoft's deputy general counsel, Horatio Gutierrez, said that the company's legal actions shouldn't be considered an affront to the open-source community but are instead specific to TomTom, which has refused to pay Microsoft licensing fees for the software used in its in-car navigation units.

The actual discrepancy is over something that "any self-respecting programmer would identify as a hackish kludge," says ZDNet Asia, noting in an article earlier this month that if Microsoft wins its suit, other open-source developers could be forced into cross-platform licensing deals that will inhibit their ability to their distribute software for free.

But if Microsoft is trying to stem the tide of free software, why would they pick a case they probably can't win? According to the landmark circuit-court case In re Bilksi, decided in October 2008, business-method patents—any non-hardware intellectual property—are now considered invalid. Is Microsoft simply hoping that it can drown TomTom in legal fees, so that it can buy the company for pennies on the dollar? It wouldn't be hard; TomTom is already edging close to bankruptcy. The company reported a 52% net profit loss last for 2008, and lost 989 million euros in Q4 alone after having to write down the acquisition of competitor TeleAtlas.

This is only the third time that Microsoft has ever sued for patent infringement, indicating to some that the company is embarking on a broader anti-open source campaign, to which the TomTom case is only a pretext. Indeed, despite Microsoft's claim that Linux isn't the central issue of the suit, the actual claims refer to Linux repeatedly, and members of the open-source community are preparing for battle. Executive Director of the Linux Foundation Jim Zemlin wrote in a blog post that his organization "will remain ready to mount a Linux's [sic] defense," should Microsoft continue on a war-path. Eben Moglen, chairman of the Sofware Freedom Law Center, has called Redmond's behavior "threatening" to open-source software. Jeremy Allison, leader of the Samba project, has called the claims tantamount to "legal threats" against the distribution of free software.

Is this the same Microsoft we saw last month signing an interoperability alliance with Red Hat, one of the biggest Linux software developers? Could that agreement, which involved no financial stipulations, have been a beard for the company's actual agenda?

Just last week, TomTom announced it would be filing a counter-suit against Microsoft, alleging that Redmond infringed upon three of its own software patents by creating its Streets and Trips product for Windows. In repsonse to the mudslinging, the editors of ZDNet Asia put together an op-ed piece yesterday standing up for TomTom and encouraging it to fight Microsoft further. The patent system, the editors say, is "broken" and "poisonous," and its abuse has led to the use of "civil courts as cudgels in the hands of bullies" like Microsoft. Whether or not court decided that Microsoft's claims are justified, they'll be little left of TomTom when the dust settles.