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TomTom - The drums of a patent war with Microsoft?

Microsoft's IP claim against TomTom could just be the first salvo in an open source patent war.

KSR v. Teleflex

The theoretical justification for patents, like copyright, is that they protect the inventor or creator from the predatory instincts of larger commercial entities, and that such protection is of ultimate benefit to the community. Patents are supposed to encourage innovation, and the propagation of new ideas and inventions. In reality, the prime beneficiaries are the corporates that can afford to prosecute patents and the lawyers who are employed to enforce them.

All software is vulnerable to unintentional patent infringement. As Bruce Perens has put it: "There are simply so many software patents, on so many fundamental principles, that no non-trivial software program could exist that was licensed by all patent holders with claims reading on the algorithms used. This is regardless of whether it is proprietary or free software."

The interoperability game

To the innocents among us, the DOS patents look like patents on interoperability. Interoperability, or the simple notion that computer systems should produce outputs in common formats which allow one computer to talk to another, has been a goal of computing since the beginning of the electronic era.

In an ideal world, protocols and data formats which are merely arrangements of bits and bytes that enable interoperability or common access to data, should never be subject to limitations on use.

A sense of direction

A spokesman for TomTom, Taco Titulaer, has said that TomTom will "reject the claim" and "[we] will vigorously defend ourselves." This could be seen as a positive development for GNU/Linux users, because there is some probability that the Bilski precedent would help to ensure that the FAT patents would be invalidated. Other factors suggest that this won't happen.

As recently as 2001, TomTom had as few as 30 employees. The success of its navigation software during the boom years has seen the company expand to 3,500 employees by the latter end of 2008. But the latest accounts suggest that the company has probably overstretched itself, incurring heavy losses, aggravated by the recent purchase of Tele Atlas, just as the markets have begun to contract. The patents are dubious. But the defence of a patent infringement case is expensive, wastes time, and there is no guarantee of a positive outcome. TomTom has little to gain from the case but to win on a point of principle.

Some have suggested that TomTom is ripe for takeover, and would give Microsoft an opportunity to diversify into a developing market. In this scenario, the pressure of a patent infringement case can be seen as the opening gambit in an effort to soften up TomTom prior to a takeover bid.

Microsoft has little to lose, may gain an acquisition, and at the very least, wins on a point of principle - which is that it can continue to license its patents on FAT file and in-car mobile systems. The FAT patents may look weak, and the patents on in-car mobile devices should fail the test of obviousness, but Microsoft has the lawyers and the money to throw at such a case.

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