TomTom countersues Microsoft on patents — Linux ?

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I’m not a lawyer (and I don’t pretend to be one either), but it seems to me that a very common legal tactic in patent battles is that counter suing is the way things are done.

GPS vendor TomTom, this week filed a patent infringement suit against Microsoft for allegedly violating four patents with the Microsoft Streets and Trips software. Microsoft in February, filed suit against TomTom for eight alleged patent violation — several of which were Linux specific. TomTom uses Linux as its underlying embedded operating system.

This is why the big patent holders cross-license items from each other, in order to prevent a back and forth patent claim battle. Patent portfolios are used as a deterrent against legal action. In my (non-lawyer view), what happened with TomTom and Microsoft is neither party was able or willing to negotiate a mutual licensing agreement of some sort, to prevent this back and forth patent battle.

The fear in the Linux community, is that the Microsoft suit is an attack on Linux. With TomTom filing a counter-suit, it is evident that this is about intellectual property that TomTom thinks it owns — it’s a subtle difference.

For the record, over the last several weeks I’ve contacted the two major embedded Linux vendors (Wind River and MontaVista) and neither wanted to talk to me about the TomTom case — which frankly surprised the heck out of me.  I personally don’t know if TomTom is using a roll your own embedded Linux (which is quite common) or if they benefited from MontaVista or Wind River support.

Why the vendor question is interesting is because one of the reasons why embedded developers choose MontaVista or Wind River  is indemnification. In such a case (if I understand the law correctly) the OS vendors would then help to defend their user.

From a wider point of view though, Linux is Linux, and the Linux Foundation has publicly said it would step in if it was necessary — so roll your own or otherwise TomTom would get some support.

One thing is for sure in this case, neither party is backing down quickly.