I had the chance to corner Andrew Updegrove to talk about Microsoft's settlement with TomTom, the Dutch GPS navigation device maker that embeds Linux in its product. Microsoft claimed TomTom had violated three of its patents governing file system management. Updegrove painted the settlement as a partial victory.Updegrove is legal counsel to the Linux Foundation and he follows any open source legal challenge closely. "You can't ignore the fact whenever Microsoft brings patent litigation," he agreed. But in this case, he said, Microsoft may have lost more than it gained.

Although Microsoft asserted in a May 13, 2007, Fortune magazine article that it had concluded open source code violates 235 of its patents and the Linux kernel in particular, 42, it only claimed TomTom was infringing on three of its patents.

Updegrove says that's a sign of how fearful Microsoft is of filing a patent suit and then losing in court. The loss would potentially invalidate the patents, and it doesn't want to expose a long list of its patent portfolio to that kind of risk.

"If it had won or lost in court, it wouldn't have won or lost much in the TomTom suit," he concluded.

In order to get a settlement with TomTom, Microsoft had to give up some claims and offer protections against future infringement claims as well as extract some concession from the Dutch company. In the settlement, Updegrove claims, "Microsoft gave up more than it gained. It put up the table stakes but it folded fast."

On the whole, that's a keen and balanced view of the TomTom outcome.

Afterward, Microsoft's deputy general counsel Horacio Gutierrez said the three patents in question "represent valuable technology innovations that increase the efficiency and functionality of file management systems." Maybe so, and then again, by airing these three patents in this context, Microsoft has opened them up to reveiw. If the open source community counterattacks and shows those patents were improperly granted, that would reduce exposure to future claims from Microsoft. And that's what's happened with the Open Invention Network, a group of Linux defenders that's trying to discover what prior art existed, so the patents can be challenged.

The Open Invention Network is a group of companies committed to using Linux, which includes IBM, Google, Oracle, Sony, Barracuda Networks, Red Hat, NEC and Novell.

The freedom to use GPL and other open source software, like all other freedoms, does not exist in a vacuum. It exists where responsible parties are are willing to defend it from encroachment and show vigor in meeting a challenge. Thousands of Linux users have a stake in this OIN initiative and should check out its call to deternime whether they have knowledge of any prior art.