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TomTom & Microsoft Settle "in a way that ensures TomTomís full compliance with its obligations under the GPLv2"
Monday, March 30 2009 @ 01:06 PM EDT

TomTom and Microsoft have settled the patent litigation. Actually, both of them. Here's TechFlash's coverage. According to the Microsoft press release, TomTom will remove functionality regarding the FAT patents within two years, which is no big deal, frankly, and in the meantime, they are covered "in a manner that is fully compliant with TomTomís obligations under the General Public License Version 2 (GPLv2)":
Peter Spours, Director of IP Strategy and Transactions at TomTom N.V., stated: ďThis agreement puts an end to the litigation between our two companies. It is drafted in a way that ensures TomTomís full compliance with its obligations under the GPLv2, and thus reaffirms our commitment to the open source community.Ē
However, Microsoft calls it a patent agreement. Of course, Red Hat showed a way that it can be done, but is that what has happened here? I don't know yet, but I'll let you know if and when I know more details. If so, it's a major step in retreat for Microsoft's bully campaign or, alternatively, it's a major step forward in Microsoft's more mature handling of GPL issues.

I think it can't be like the Red Hat deal, though, because TomTom is removing the Linux functionality. That leaves not paying a royalty. But the news is that they are paying. Wait. One other possibility, a Novell-like deal? Indeed Ina Fried on CNET gives a hint that is something similar:

As part of the deal, as TomTom will pay Microsoft for patent protection related to mapping patents and file-management patents that Microsoft claimed were infringed by TomTom's use of the Linux kernel....

In the case of the three file management patents, Microsoft is providing an agreement not to sue customers for their use of TomTom's products.

As long as TomTom stays under GPLv2, this might squeak by. But it's hardly ideal. I'd have preferred that TomTom not settle so that the FAT patents could get tested in court, but it's not my dime.

More indications from eWeek's coverage that this is a Novell-like deal:
According to Microsoft, the agreement includes patent coverage for Microsoftís three file management systems patents provided in a manner that is fully compliant with TomTomís obligations under the General Public License Version 2 (GPLv2). TomTom will remove from its products the functionality related to two file management system patents (the ďFAT LFN patentsĒ), which enables efficient naming, organizing, storing and accessing of file data, Microsoft said. TomTom will remove this functionality within two years, and the agreement provides for coverage directly to TomTomís end customers under these patents during that time.
Blech. If TomTom doesn't upgrade to GPLv3 code, this might squeak by, on the same concept that the payment isn't a royalty on the code paid by the company to Microsoft, but a payment for the direct promise to TomTom customers from Microsoft not to sue them, but if so, TomTom isn't exactly trying to be a FOSS hero. And Microsoft is already using them to troll for more such deals. Here's a snip from Elizabeth Montalbano's coverage:
Horacio Gutierrez, Microsoft's corporate vice president and deputy general counsel of intellectual property and licensing, said in a statement that he is pleased TomTom chose to resolve the matter out of court and that many companies already license the patents in question, including companies that create products containing both open-source and proprietary code.
Blech. That's the pitch. But then Microsoft statements are always framed as "wins", so far as I've noticed.

Ars Technica sees this difference between TomTom's and Novell's deals:

TomTom will, however, remove the functionality that is covered under the FAT patents. This will guarantee that the code in TomTom's Linux kernel can continue to be broadly redistributed downstream under the GPL without patent encumbrances. This aspect of the agreement, along with specificity about which patents are infringed, are major factors that differentiate this agreement from Microsoft's controversial deal with Novell.
I don't quite get that reasoning, since Novell continues to redistribute, and there are allegedly no patent encumbrances on the code. Remember? It was a direct promise from Microsoft to Novell *customers* not to sue, a covenant. There was no encumbrance on the code; rather a promise. It's a fiction, a work-around to get by the GPL. That's all.

Well. That's enough.

I'd say my first impression is that both companies backed off some, and neither wanted a knockdown, dragout fight over two long file name FAT patents TomTom obviously doesn't need. Who does need them, actually? Anyone? Call your file something short. Presto. In that sense, TomTom did well to decide to just remove them, and I hope everyone follows their lead on that.

Remember when the Samba guys were presented with a list of Microsoft patents, and they said, Nah. We can work around them. TomTom is essentially saying the same thing, but it's going to take longer to get the job done.


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