TomTom’s CEO said in a speech in 2008 that in 2005, the company had spent more money on patent litigation than all of their other business activities combined.
According to the patent lawyer for the company, a single software infringement case could cost more than $5 million to take to court. This is what it costs even if you end up winning the case. TomTom is now facing having to defend itself against eight infringement lawsuits around its patents.
Smaller businesses are, a lot of the time, have no choice by to license a patent that is most likely invalid, instead of having to go through the headache of paying a huge expense having to prove themselves right. What this means is that there is only justice for those that have deep pockets when it comes to software patents.
So, what’s the point of software patents in the first place? The majority opinion in an industry like this is that they don’t actually motivate developers to be innovative, but instead they hold it back. Of course, they work in favour of the biggest companies out there, and protect them against small enterprises that actually make up the majority of the technology economy. This means that patent software doesn’t actually make a lot of sense.
Of course, the question arises of whether this is the first direct shot at Linux from Microsoft. However, perhaps the first shot was actually the patent agreement that they had with Novell. Once the open source community made a strong showing against Novell because they agreed with their terms, Microsoft was ineffective.
Another potential outcome is that Microsoft knows deep down that they can’t win this time, but they still want to spread bad things about Linux at a time when Linux is actually gaining on Microsoft significantly.
An example of this is in the UK, where they recently announced that they would encourage open source. What’s interesting is that TomTom is actually really popular in the UK. This case is already being reported on heavily over there, and it will become a poignant topic for those who are against the government moving in the direction of open source software.
The reason why we think that this could just be a PR move and not something that’s actually going to transpire is that Microsoft could probably end up losing if someone took a closer look at the patents. This means that Microsoft can’t really afford to let the case proceed.
They will be hoping that TomTom is going to settle, which will end up bolstering the weak position of the patent to the public. Another potential outcome is that Microsoft is willing to trade the PR value of being front page today, for almost minimal loss that it will experience later on.
A Wolf in the Mix
You might have actually picked up on the fact that Microsoft has lately been trying to participate in open source, and they’ve been making a lot of noise about it. All this tells us is that Microsoft doesn’t really understand the premise of open source, otherwise they wouldn’t be trying to sue someone over using their ancient filesystem.
It also means that they haven’t changed, and they still remain disingenuous about the extent of their involvement in open source. However, we don’t think that Microsoft was ever trying to be sincere.
Perceiving Microsoft to be involved in open source, is only giving Microsoft the ability to speak about it on a government level, which would compromise the legislation that smaller companies need to defend themselves against software patents, or to try and develop a level playing field where open source software can fairly compete.
What is to be Done?
So, in Europe, companies have managed to hold off enforceable software patenting for the most part up until now. However, we’re not seeing the same patterns in America, and the reality is that developers need to be able to create and sell software without the threat of patent extortion.
We ultimately need to unite open source developers with proprietary developers, if they’ve got a hope of being heard by politicians.