Microsoft has claimed in the past that technology used in the
main body of the Linux open source operating system, the 'kernel',
infringes patents which it owns. It has not so far tested those
claims in court.
It has now taken action against TomTom over eight patents which
it owns, and a Microsoft lawyer said that three of those claims are
related to TomTom's use of Linux.
"[The] TomTom implementation of the Linux kernel…infringes these
claims," Microsoft's deputy general counsel for intellectual
property Horacio Gutierrez told CNET News.
"There are many flavors of Linux [and] many implementations of the
Linux kernel. Cases such as these are very fact-specific."
Microsoft said in 2007 that Linux infringed 235 of its patents.
General counsel Brad Smith said that 42 of those were violated by
the kernel alone, while 65 were infringed by the graphical
interface of Linux.
It is believed, though, that if the TomTom case goes to trial it
will be the first test of Microsoft's claims in a court.
"We have taken this action after attempting for more than a year
to engage in licensing discussions with TomTom," said Gutierrez in
a statement. “We have an established intellectual property
licensing program, and the patents involved in this case, relating
to innovations in car navigation technology and other computing
functionality, have been licensed by many others."
"In situations such as this, when a reasonable business
agreement cannot be reached, we have no choice but to pursue legal
action to protect our innovations and our partners who license
them. Other companies that utilize Microsoft patents have licensed
and we are asking TomTom to do the same," he said.
Microsoft would rather resolve the issue by TomTom's taking out
of a licensing agreement than through litigation, it said.
Five of the patents which Microsoft claims are infringed are
specific to in-car navigation systems. The other three relate to
general computer operations.
Two separate patents are titled 'Common Name Space for Long and
Short Filenames', while the third is 'A Method and System for File
System Management Using a Flash-Erasable, Programmable, Read-only
Memory'.
Gutierrez told Fortune magazine in 2007 that he did not believe
that the alleged patent infringement in Linux was coincidence.
"This is not a case of some accidental, unknowing infringement,"
he said. "There is an overwhelming number of patents being
infringed."
As well as a suit in Washington State, Microsoft has filed an
application with the International Trade Commission to block
imports of the devices by the Dutch-headquartered company.
Microsoft received its 10,000th
patent earlier this month.
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