All Microsoft wants, he said, is for TomTom to do what other companies have done. "We have taken this action after making a good faith effort for more than a year to resolve this matter amicably with TomTom," Gutierrez said. "Other companies that utilize Microsoft patents have licensed and we are asking TomTom to do the same. TomTom is highly respected and important company, and we remain open to quickly resolving this with them through an IP licensing agreement."
If TomTom doesn't cooperate and the case does go to trial, Updegrove thinks Microsoft could be in trouble. "Now that Microsoft, finally, after so much posturing, has identified some of its patent claims, those claims will be subjected to a level of scrutiny the likes of which has never been seen before. One way to bust a patent is by revealing 'prior art' -- in layman's terms, evidence that someone else developed the same technology before, or that the patented invention could reasonably be inferred by one skilled in the trade.
"If there is a shred of prior art on the planet, it will be found and made available to the court," Updegrove said. "One need only look to the abysmal experience of SCO to see how much blood, sweat and tears (and, in that case, an unparalleled amount of folly, as well) can be spilled in tilting at Linux. With SCO vanquished, plenty of trained troops itching for another fight."
One of those troops, Pamela "PJ" Jones, editor of Groklaw, is ready to go. Jones thinks that after the Bilski case knocked out the legal foundation to many business process and software patents, Microsoft would be foolish to take these patents to trial. "What makes you assume they are valid in the post-Bilski world?" Jones wrote. "Don't even get me started on obviousness. Let alone who really 'invented' that stuff. This may turn out to be an opportunity, frankly."
So, will Microsoft actually push its case if TomTom doesn't cooperate? If it does, it could well end up being a battle over IP in Linux -- and that's a battle at least some open-source supporters are more than ready for.