Open Invention Network (OIN) announced that three of the eight patents cited in Microsoft's lawsuit against TomTom have been posted for prior art review by the Linux community. The evidence is being compiled to convince the U.S. Patent and Trademark Office that the patents are invalid.

Patent holding company OIN was established by IBM, Sony, Philips, Novell, and Red Hat back in 2005, and has since been joined by NEC. The company acquires patents and licenses them royalty-free to companies that agree not to enforce their own patents against Linux and “certain Linux-related applications,” says OIN. In December, OIN launched its Linux Defenders portal, co-sponsored by the Software Freedom Law Center (SFLC) and the Linux Foundation (LF). The program is designed to make prior art more readily accessible to U.S. Patent and Trademark Office (USPTO) examiners, said OIN.

The three patents cited by Microsoft that cover the FAT filesystem and related technology — U.S. patents 5579517, 5758352, and 6256642 — have been posted on the Post-Issue Peer-to-Patent website associated with Linux Defenders, says OIN. The patents also cover flash-erasable programmable ROM and a GUI related patent, said OIN CEO Keith Bergelt in a phone interview.

“We're inviting the community to come in and contribute prior art so that we can see if relevant art exists to request a reexamination of the patents for purpose of reevaluting claims,” said Bergelt. “Significant prior art has already been identified concerning these patents, and this will enhance and expand upon that evidence.”

TomTom's Linux-based Go 940 Live PND

Bergelt was vocal in his criticism of Microsoft when it filed suit against Dutch personal navigation device (PND) vendor TomTom in February for alleged patent violations found in TomTom's Linux-based PNDs. The patent lawsuit represented the first time Microsoft directly targeted open-source Linux components in a lawsuit. Microsoft listed three patents involving the TomTom devices' use of the FAT filesystem.

Broken promises

Microsoft's subsequent victory in gaining favorable terms from TomTom has inspired considerable anger among Linux bloggers, including Linux Foundation executive director Jim Zemlin. “Despite [the company's] claims of acquiring a newly-found respect for open principles and technology, developers should be cautious in believing promises made by this 'new' Microsoft,” Zemlin wrote in an LF blog following the settlement.

While noting, as did Bergelt in this most recent interview, that Microsoft may have settled for less than it desired when TomTom received public support from Linux advocacy organizations like OIN, the LF, and the SFLC, Zemlin seemed to concede that a counter-suit was not imminent. Instead, he announced that the LF would help companies excise the Microsoft FAT filesystem from their systems to avoid the fate of TomTom. Meanwhile, OIN's Bergelt was quoted as agreeing that a standardized FAT substitute may be in the offing.

A patent dismissal by year's end?

While Bergelt still believes that it makes sense to formulate an alternative to FAT, he now says that there's a good chance that the USPTO may well invalidate the three FAT filesystem patents before that. In fact, he said, the decision could occur as early as the fourth quarter.

The likelihood that the patents will be overturned, and the speed with which it might happen is “is dictated by the quality and quantity of prior art,” said Bergelt. The willingness of the USPTO to overturn invalid patents is there, he said, but “the system is operating under a strain due to volume and personnel change and high employee churn rate,” he added. “The Linux community has unique knowledge that can't be accessed by the Patent Office examiners in a facilitative way.”

According to Bergelt, the prior art could be used “in a preemptive way,” but he says he doubts a counter-suit against Microsoft is in the offing. Neither does he expect that Microsoft will sue another device vendor over the FAT patents in the near future. Still, he acknowledged that the possibility remains, and noted that the Linux Defenders prior art repository could provide the basis for a defense should a company decide to respond to a Microsoft suit in court. The main focus, however, is to get the USPTO to overturn the patents, he added.

Meanwhile, it's up to the Linux community to submit prior art that may support the widely considered view that the core of the FAT filesystem was developed before Microsoft's version, said Bergelt. “The whole key is to have the community recognize that this is an opportunity to contribute to our role, which is to make the world safe for Linux,” he said.

Availability

Submissions for prior art on the patents 5579517, 5758352, and 6256642 may be made at the Linux Defenders portal, here. More background on the technology behind FAT may be found in our original interview with Bergelt, here.

 
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