Bruce Perens on the Microsoft Lawsuit

Bruce Perens, co-founder of the Open Source Initiative and an expert on open source patent law, has weighed in with an interesting article on the Microsoft patent lawsuit agains Tom Tom, calling it “A Big Duh Factor.”

Is this a serious suit, or an effort to stir up fear, uncertainty, and doubt about Linux at a critical time, when government and industry is taking up Open Source in a big way? TomTom has shallow pockets, relative to Microsoft, pockets that have already been drained by other lawsuits. Will TomTom have to settle and license regardless of the validity of Microsoft’s patent claims, rather than drop $10 or $20 million in defending themselves?

Perens suggests rather strongly that the patents in question are bogus and gives a detailed accounting of them. There are eight patents involved, two of them concerning the FAT file system, which is Microsoft’s method of storing files on disk. When it introduced long file names in Windows95, Microsoft patented an “innovation” that associated long file names with short names. A File Allocation Table was used to map ALongFileName.txt to ALONG%#.TXT.

Perens argues that there is plenty of “prior art” that uses tables for such mappings and hence the Microsoft patents are invalid. “Why would anyone want to pay Microsoft for using this lackluster technology?” Good question.

The problem is that Tom Tom may not have deep enough pockets to fight Microsoft’s patent in court. So the worry is that Tom Tom will agree to pay licensing fees to Microsoft thereby allowing it to continue to claim the validity of these patents. The threat to the Open Source community is that FAT has been implemented in the Linux kernel. The reason for this is that due to Microsoft’s monopoly dominance in the desktop market, nearly all removable storage devices (e.g., USB sticks) come pre-formatted with FAT. Hence Linux systems have to be able to deal with FAT.

This is a considerable worry because patent law is highly biased toward corporations with deep pockets. It typically costs around $5 million dollars to defend against a patent infringement claim, even if you win it. Tom Tom is faced with 8 such claims. $40 million is chump change to Microsoft.

Perens and many other FOSS advocates think software patents should be done away with. In a perversion of the clear intent of the U.S. Constitution, software patents today are used to stifle innovation. In this case, Perens speculates that the timing of this is fishy and smells of an attempt to intimidate governments and businesses with worries about endless patent lawsuits if they start adopting FOSS technology on a large scale.

UPDATE:  See Richard Stallman’s 2005 Guardian article “Patent Absurdity” for a nice analogy between software patents and literary patents.  As he shows, if literary patents had been allowed, it would be very difficult for Victor Hugo to write Les Miserables.

Perens argues that we need to push back with a movement by both proprietary and open source developers to rid the world of software patents.

  1. #1 by Emily Travers on April 20, 2011 - 3:07 am

    Claiming propriety or patent on softwares or whatever there is on the Internet is really hard. The government alone cannot handle the enormousness of the issue. I wonder how this would be addressed as the number of claims goes up by the minute.

    Emily Travers

  2. #2 by Hank Jones on April 26, 2011 - 12:08 am

    I think that the big corporations are filing law suits after law suits against the smaller companies because they feel threatened. Free and Open source software is becoming more visible in the web, and is a great alternative to the expensive software. Microsoft can file as much law suits as they can but I think there’s nothing much they can do to stop the Open source wave.

    Hank Jones
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