The Microsoft patent attack
<p>Steven Shankland from CNET sent OSI some questions yesterday about the Microsoft patent lawsuit against TomTom involving the use of Linux in their GPS devices.  Here&#8217;s what I told him by email:</p>
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<blockquote><pre>
> Looking at the two complaints, it appears Microsoft is finally asserting
> patent infringement against a product based on Linux, specifically
> involving the file system technology--"A Common Namespace for Long and
> Short Filenames" and "Method and System for File System Management Using
> a Flash-Erasable, Programmable Read-Only Memory." Another implicated
> patent is "Vehicle Computer System With Open Platform Architecture."
> 
> Copies of the U.S. District Court and International Trade Commission
> complaints are here: 
> 
> http://news.cnet.com/i/ne/pg/fd_2009/Complaint.pdf
> http://news.cnet.com/i/ne/pg/fd_2009/2009.02.25_Public_ITC_Complaint_MSFT_TomTom.pdf
</pre>
</blockquote>
<p>I read the Federal complaint this morning [the day the suit was announced].  It&#8217;s not very informative, basically just legal boilerplate around a list of patents.  The ITC complaint gives a few more hints about their legal posture, but not much.</p>
<blockquote><pre>
> --Does this make you rethink any of the intellectual property
> considerations around Linux and open-source software?
</pre>
</blockquote>
<p>Not really.  We&#8217;ve been expecting Microsoft to mount some kind of patent attack on Linux for years; they&#8217;ve certainly rattled that saber often enough.</p>
<blockquote><pre>
> --What are the immediate and long-term effects of this on the
> open-source software world?
</pre>
</blockquote>
<p>Too early to say. One thing we can be pretty sure of, however, is that it&#8217;s not going to stop Linux from shipping.  That would be an extremely difficult thing to manage, since there&#8217;s no single throat Microsoft can ask a court to choke.</p>
<blockquote><pre>
> --Do you think the Microsoft patents have merit?
</pre>
</blockquote>
<p>We think Microsoft is probably asking itself that same question. Personally, I read this move as a test of the waters in the wake of the Bilski ruling.  They&#8217;ve picked a small, weak target in order to find out whether software patents still actually work, which is a bit questionable at this point.</p>
<p>Much depends on how the in re Bilski language about association with a machine and &#8220;transformation&#8221; is construed in this and future cases. At one extreme, it&#8217;s quite possible that software above the level of device firmware in ROM is no longer patentable in the U.S., and I&#8217;m sure Microsoft wants to know before they commit their money and prestige against a major defendant.</p>
<blockquote><pre>
> --Do you think this case will expand beyond just TomTom and Microsoft to
> affect other companies, organizations, or programmers--for example
> discovery reaching out to various programmers?
</pre>
</blockquote>
<p>I&#8217;m sure Microsoft will try to make it as big, messy, and scary as they can.  But&#8230;the subject matter of the complaint is embedded Linux on a GPS; it&#8217;s likely TomTom rolled their own lightweight Linux-based firmware build from publicly available sources, so the distribution makers like Red Hat and Ubuntu aren&#8217;t in the line of fire.</p>
<p>It&#8217;s actually not easy to imagine anyone besides TomTom that Microsoft could fruitfully target with these claims.  The only logical possibility, on what&#8217;s publicly known at the moment, is the developers of the FAT filesystem code TomTom is using.  But there are certainly  copies of that code outside U.S. jurisdiction, and plenty of hackers  a U.S. court can&#8217;t reach who would be delighted to take over development just for the pleasure of poking a finger in Microsoft&#8217;s eye.</p>
<blockquote><pre>
> --Do you think the filename issue has any repercussions beyond
> Linux--Samba springs to mind?
</pre>
</blockquote>
<p>Oh, lots.  For one thing, pretty much every manufacturer of a consumer-electronics device that uses mountable storage like thumb drives or SD cards uses FAT as their media filesystem &#8211; digital cameras, for starters.  Legal departments all over that industry will be going on high alert right about now.</p>
<blockquote><pre>
> --What repercussions does this have for non-embedded Linux companies,
> e.g. Red Hat or IBM?
</pre>
</blockquote>
<p>See above.  The short answer is &#8220;probably none&#8221;, but I&#8217;m sure their legal departments have gone to high alert too.</p>
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> --What can we expect next in the legal process?
</pre>
</blockquote>
<p>Ask a lawyer, I&#8217;m not one.  Mark Radcliffe [OSI's lawyer] might comment on the procedural<br />
aspects if you ask him nicely.</p>
<blockquote><pre>
> --Any other thoughts?
</pre>
</blockquote>
<p>Here&#8217;s one: FAT is no longer essential technology for anybody.  It&#8217;s an easy, lowest-common-denominator option for device makers, but there&#8217;s nothing about it that&#8217;s essential to the functioning of a GPS or any other device.  File systems for devices at that small a scale aren&#8217;t hard to write; there are quite a few available in open source already.</p>
<p>One of the risks Microsoft takes with this move is that the consumer electronics industry will get off its butt and standardize on something open &#8211; the flash-memory and thumb-drive manufactures, in particular, have huge business incentives to drive this move if they think Microsoft might target them or their customers.</p>
<p>If so, the long-term effect could hurt Windows pretty badly &#8212; because, of course, Linux could fully deploy support for such a standard within a few months from a cold standing start.  Suddenly, Windows systems wouldn&#8217;t be able to read thumb drives and Linux systems would.</p>
<p>So, strategically, this is a move with huge risks for Microsoft.  They could wind up with the entire patent threat neutered by an aggressive reading of in re Bilski, or with the consumer-electronics industry abandoning FAT and handing Linux a huge market advantage.  I&#8217;m sure these scenarios were discussed within Microsoft before they sued.</p>
<p>Ultimately, the message here may be that, with its Windows profits dropping and Vista a failure, Microsoft is running out of strategic options and desperate.  It&#8217;s like the second coming of their sock-puppet SCO, and not likely to end any better for them.</p>
<p>UPDATE: While several commenters have ridiculed the possibility that the consumer-electronics crowd could abandon  FAT, there is a solution&#8230;<a href="http://en.wikipedia.org/wiki/Universal_Disk_Format">UDF</a>.  Supported by all major operating systems and already in use for large flash media.</p>
