But will there be a case at all? TomTom's CEO mentioned in a 2008 speech strongly critical of software patenting (video) that in 2005, the company had spent more on patent litigation than all of their other activities combined. According to the patent lawyer's own professional organization, a single software patent infringement case could cost upwards of USD $5 Million to defend. That's what it costs even if you win the case. TomTom must now defend itself from eight patent infringement claims.
Smaller companies are often forced to license a patent that is likely to be invalid, rather than pay the terrible expense of proving themselves to be right. This means there is rarely justice for anyone but the very richest companies where software patents are concerned.
So, why do we have software patents at all? The general consensus in the industry is that they don't fulfill their constitutional purpose, to encourage innovation, but actually hinder it. They tend to work in favor of a few of the very largest companies, against the small and medium-sized enterprises that make up the vast majority of the tech economy. Thus, they don't make economic sense.
I asked if this was the first direct shot at Linux from Microsoft. But perhaps their patent agreement with Novell, which appeared calculated to circumvent the terms of the GPL license and raise the cost of Open Source above $0, was the first shot. After the Open Source community made a strong showing against Novell for agreeing to the terms, Microsoft's move was ineffective, and a recent Microsoft agreement with Red Hat included none of the odious terms that Novell took on.
Another possibility is that Microsoft knows it can't win this time, but has brought this case to spread anti-Linux FUD in the news at a time when Linux is making critical gains against Microsoft. For example, the United Kingdom government recently announced it will strongly encourage Open Source for its own IT procurement. TomTom is very popular in the UK. This case is already being heavily reported there, and will become a speaking point for those who oppose the government move.
What makes me think the case might be a FUD move, rather than something real, is that Microsoft would probably lose if there were a close examination of these patents. So, they can't afford to let the case proceed. I suspect that Microsoft is betting that TomTom will settle, and thus bolster the patents weak position publicly through its acquiescence. Another possibility is that Microsoft is willing to trade the PR value of front-page FUD today for a mostly un-noted loss on back pages next year.
Perhaps you've noticed Microsoft's recent efforts to participate in Open Source, and all the noise they've been making about it. This case should be a lesson to the Open Source developers around them: Microsoft still doesn't understand what Open Source is about, or they'd not be suing anyone over the implementation of their ancient filesystem in Linux.
They have not turned over a new leaf, and still remain insincere about their involvement in Open Source. The Microsoft employees that Open Source projects directly deal with are as sincere as you'd like, but they aren't top management and can't influence top management. Don't ask them for much in the way of promises, they are liable to be repudiated by those higher up. I doubt many Open Source projects were about to trust Microsoft, but that won't happen now.
I don't believe Microsoft was ever attempting to be sincere. A perceived involvement in Open Source by Microsoft, along with highly paid mouthpieces like Novell to chime in for them, is giving Microsoft the ability to speak for Open Source in government circles, short-circuiting the legislation we need to defend ourselves from software patents or to establish a level playing field on which Open Source and proprietary software can compete fairly. That's their true interest.
We've managed to hold enforceable software patenting off, for the most part, in Europe. But we've not had the same success in the U.S. Now, it's time to follow up the Bilski case with legislation cleaning out the software patent system. Developers need to be able to make and sell software without the threat of patent-related extortion. We must unite both proprietary and Open Source developers - who are equally at risk - to work for this cause, if we're to have a hope of being heard by legislators.
Bruce Perens is a popular keynote speaker on Linux, Open Source, and technology policy. He is a strategic consultant to government and industry. He can be reached at 510-984-1055, or via email to bruce at perens dot com.