The sight of Microsoft apparently prevailing in patent litigation against a Linux-based software application is bound to send a frisson of fear and loathing through the open source world.

So it was today, with news that a case brought last month against TomTom had been resolved. The Dutch-based navigation maker has agreed to make payments to Microsoft to end a claim that it breached eight patents, while also over the next two years removing functionality from its products related to two of the patents.

TomTom’s devices run on Linux, so the Microsoft lawsuit was seen as a deliberate, if sideways, attack on the open source operating system.

Seen from one perspective, the resolution has returned things to the status quo ante. In a statement, TomTom said the settlement had been structured in way that allows it to continue distributing the Linux kernel in compliance with its obligations under the GPL2 open source licence.

The settlement’s real significance, though, may lie in the fact that it has allowed Microsoft to put down two markers that could well influence how other “mixed source” software companies behave in future.

One involves the two patents for which TomTom has agreed to remove functionality, relating to Microsoft’s FAT file management system. In a statement, the Software Freedom Law Center insisted that the FAT patents “are now and have always been invalid patents in our professional opinion.” But the practical effect of the TomTom settlement may be to lead other developers to steer away from risking a claim of infringement themselves.

After all, this is only the third patent case Microsoft has ever brought, and the first involving open source, so TomTom’s retreat will reverberate.

The second marker that Microsoft has put down relates to its implied threat that Linux customers can only safely use the open source system if they are operating under a “safe harbour” granted by Redmond.

This was the idea embedded in the much-despised agreement between Microsoft and Novell two years ago: that Microsoft would agree not to sue customers of Novell’s SuSe Linux over any breaches of Microsoft’s IP. The idea that Microsoft would implicitly extend its dominion over Linux like this so angered the open source community that a rewrite of the GPL, then underway, was amended to prevent it happening in future.

The Linux kernel, though, is covered by the older GPL2, and Microsoft has since had success in getting other companies, including Samsung, LG Electronics and Brother, to agree similar arrangements.

According to several reports today, which tally with what we’re hearing, the TomTom settlement also involves the granting of a Microsoft concession not to sue the company’s customers. Much as open source purists hate it, it seems that this is fast becoming the norm, at least when it comes to embedded Linux in consumer eletronics products.

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