Horacio Gutierrez

Microsoft's suit against TomTom has created a stir in the open-source world as the Redmond company's first case alleging patent infringement over an implementation of the Linux kernel. However, Microsoft downplays that aspect of the suit and says the case is not the beginning of a broader legal campaign against open-source software.

Horacio Gutierrez, Microsoft's corporate vice president deputy general counsel for intellectual property, didn't raise the Linux subject on his own when he outlined the case for me yesterday, but he acknowledged the issue and went into detail in response to my questions. Read on for the key excerpts from our exchange:

Q: Is the technology being used by TomTom something it developed on its own, or is it outside or open-source technology that they're using?

Gutierrez: Well, it's hard for me to tell where the technology comes from. I think they would be the ones that would be able to tell. What I will say is that in the case of TomTom, even though they are a global commercial manufacturer and seller of a proprietary embedded hardware device, the case involves infringement of Microsoft patents by TomTom devices that employ both proprietary and open-source software code.

It's not unusual for companies to develop products based on a mix of proprietary and open-source code, as you know, and like every other company they must take responsibility for ensuring that their systems do not infringe others' patents. Licensing agreements are a useful means, in our experience, for ensuring mutual respect of IP, and, in fact, we have entered into licensing agreements with many companies that run mixed-source software environments before, such as Samsung, LG Electronics, Fuji Xerox, Brother and Kyocera Mita

Q: A couple years ago Microsoft stated publicly that Linux and other open-source technologies violate more than 200 of Microsoft's patents. Does this get at that issue at all?

Gutierrez: Yes, well, three of the eight patents in this dispute read on the Linux kernel as implemented by TomTom. The other five relate to car navigation proprietary software used by TomTom.

Q: You said they read on the Linux kernel? What do you mean by that?

Gutierrez: What I mean is the patents cover the implementation of the Linux kernel done by TomTom in their products.

Q: Is this the first time that Microsoft has filed suit over any alleged infringement by the Linux kernel of Microsoft's patents?

Gutierrez: Yes, but I should say that open-source software is not the focal point of this action. The case against TomTom involves infringement of Microsoft patents by TomTom devices that employ both proprietary and open-source, and as I said, out of the eight patents, five of them relate to proprietary software infringement.

Q: But you have never before sued over the Linux kernel in this way?

Gutierrez: That's correct, although I have to say those patents have been part of numerous licensing agreements that we've entered into with a whole range of companies, in the car-navigation sector and others.

Q: Is this the first in a series of steps that Microsoft plans to take to start filing suit over those more than 200 alleged patent violations?

Gutierrez: No. I should say, Microsoft respects and appreciates the important role that open-source software plays in our industry, and we respect and appreciate the passion and the great contribution that open-source developers make in our industry. That appreciation and respect is not inconsistent with our respect for intellectual-property rights. Partnership with all technology companies, including those that adopt a mixed-source model, must be built on mutual respect for IP rights -- rights that we all rely on for driving innovation and opportunity.

Now, this case is against TomTom, and it involves infringement of Microsoft patents by TomTom devices. Each case is different, and this one is specifically about the use of software by TomTom in its devices.