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April 28, 2009

The Open Invention Network (OIN), a Linux advocacy group today said it is publicly seeking invention data that would effectively overturn three Microsoft patents that the software giant has charged are infringed by some implementations of the Linux kernel.

For the past two to three years, the OIN has encouraged open source developers with examples of earlier work in the areas covered by Microsoft's patents to submit them via the Internet.

Keith Bergelt, CEO of the Open Invention Network says "the patent in question is simply vetting activity offered by the Linux Defenders portal in a unique opportunity to bring to bear the collective knowledge, passion and ingenuity of the Linux and open source community to better explore the validity of the patents that were the subject of the recent action."

"I strongly encourage active participation from the entire Linux community so that other companies seeking to advance Linux and open source strategies can be better informed about the quality of these patents," added Bergelt.

Overall, the Open Invention Network said it is looking for examples of so-called prior art that could help invalidate three file management patents that Microsoft used in its suit against GPS maker Tom-Tom. Although Tom-Tom and Microsoft settled out-of-court, the lawsuit still raised the specter that Microsoft might pursue other Linux-related companies.

They have been validated through licensing agreements and highly scrutinized for validity by patent offices, and two of the patents relating to the FAT (File Allocation Table) naming methods have been affirmed twice by the federal Patent Office and have been licensed to more than 18 companies.

The third patent, with relates to how file systems work better with flash memory, has also been licensed to other companies, Microsoft said.

For its part, Red Hat has praised the move to try to invalidate Microsoft's patents. Other Linux vendors such as Novell's SUSE Linux have done as well. And at least two other Linux vendors are expected to follow suit as well.

Microsoft deputy general counsel Horacio Gutierrez said in a statement that the three patents in question "represent valuable technology innovations that increase the efficiency and functionality of file management systems."

Microsoft also said its lawsuit was specific to Tom-Tom, but also notes that Gutierrez refused to rule out further legal actions against Linux-related companies, as long as the litigation is ongoing.

Red Hat said "if Microsoft's objective was to build trust and confidence with the open-source community, it failed miserably! It is very unfortunate when a big technology company the size of Microsoft decides that, instead of simply competing on a level playing field in the marketplace, it will devote its entrepreneurial energy and large financial resources to cannibalize the patent protection segment of the IT industry."

"Red Hat is extremely pleased to endorse the growing movement within the free and open-source community of gathering prior art to undermine invalid software patents," Red Hat's legal team said in a blog posting. "We're particularly pleased that Open Invention Network's Linux Defenders has now invited scrutiny of the three patents that Microsoft used in the Tom-Tom case to attack open source, as numerous public reports suggest weaknesses in these patents."

Many IT industry observers are now expecting this lawsuit to escalate rapidly, but most are still confident that the Linux community will prevail in the end.

The open source segment of the industry is now too broad and well defined already. Microsoft will probably continue to throw other curves like this one at the open source community, but the community is well prepared and will vigorously defend itself like it has always done in the past.

Source: OS Today.

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