About the Author: Bruce Perens is the creator of the Open Source Definition, the manifesto of Open Source and the criterion for Open Source software licensing. Perens represented Open Source at the United Nations World Summit on the Information Society, at the request of the United Nations Development Program.

Microsoft and TomTom have settled their patent lawsuit in a way that leaves Microsoft's FAT patents active as a threat to other companies.

Since I last wrote on this topic, TomTom brought a counter-suit against Microsoft, attempting to get the software giant to license four mapping patents that TomTom claims MS infringed. Tomtom apparently had previously been attempting to convince Microsoft to license. So, it's hard for me to find sympathy for either player in these lawsuits, but there's lots of sympathy to hand out to the software industry, justice, and Linux – all losers in this deal.

Justice lost because there's been no trial to overturn the FAT filesystem patents. As venture capitalist Larry Augustin wrote: "Those of us who have PhDs in computer disciplines and have studied operating systems and file systems, don't see anything particularly innovative in FAT or its extension to support longer file names, FAT32."

Indeed, the FAT patents have been invalidated for being non-innovative in Germany, and only survived invalidation in the U.S. through a patent office appeal in which opponents were not allowed to participate. It would take a trial in court to finally settle the issue, a trial that Microsoft would likely have lost.

But justice is too expensive. A trial to invalidate the eight patents Microsoft brought against TomTom, none of them poster-boys for innovation, would have cost more than TomTom had to spend, perhaps in excess of $10 million dollars. Obviously Microsoft offered TomTom an out for much less than that, but all we've been told is that TomTom paid Microsoft, and Microsoft didn't have to pay Tomtom. How much?

There's nothing in the press release about the settlement to contradict the notion that TomTom might have settled for one dollar. The terms of settlements are generally sealed by the court, with penalties for disclosure. Sometimes we can find out about them in later financial filings of the companies involved, but this isn't always the case. What Microsoft really wants from TomTom isn't money, it's support in building fear about Linux in other companies, especially the makers of mobile and wireless devices just like TomTom's own product. Microsoft wants you to believe you need a Microsoft license to deploy Open Source software. This settlement is likely to deter some of those companies from using Linux at all.

As part of its settlement with TomTom, Microsoft also revived the end-run around the GPL 2 license that Microsoft and Novell engineered when those two companies made their much-criticized patent deal: Microsoft will directly license TomTom's customers, rather than TomTom, to use the patents in TomTom's Linux system.

The GPL license has terms that are meant to put all the users of GPL software in the "same lifeboat," making individual patent licensing by one of those users untenable because the copyright license on the software would become invalid in response. Thus, an attack against one company deploying Linux would be an attack against all and would be vigorously defended.

Microsoft and Novell's loophole makes it possible for companies to ignore the welfare of the rest of the folks in the lifeboat, and TomTom now joins Novell in exiting the lifeboat to save its own neck without consideration of the other passengers.

Like Novell, TomTom's action shows contempt for the Linux developers whose resources they gained for free and use to great profit in their product. They violate the spirit of the license granted by those developers by using a legal trick that purports to comply with the letter of that license.

But then again, this might have been the only action possible to keep TomTom, already in financial trouble, from an outright takeover by Microsoft, which many had thought to be the goal of the lawsuit.

And let's not forget Microsoft. All of that talk about interoperability with Linux coming from them? It was just talk, because they've shown that anyone who tries to interoperate with Microsoft technology even as simple as the FAT filesystem will eventially be sued, or pushed into licensing, for their efforts. The way they act, the Microsoft-internal definition of "interoperability" must be "making the whole world owe us."

And so, you should be wary of FAT, Office Open XML, .NET (including Mono), Silverlight, and of Microsoft's participation in standards committees that don't have a clear royalty-free committment, or, as is the case for Office Open XML, when the royalty-free committment is less than complete. These technologies leave the door open for submarine patents to sink your business.

Next: Same FUD, Different Day »