The Linux kernel apparently does in fact infringe on Microsoft's patents - at least that's certainly the way it looks to the casual observer because TomTom has agreed to yank the offending widgetry out of its GPS devices over the next two years.

That's part of the deal it made with Microsoft the other day that settles Microsoft's patent infringement suit against the Dutch company and TomTom's show countersuit.

TomTom is paying Microsoft an unspecified amount of money for five years' worth of protection against the eight patents that Microsoft charged TomTom with treading on including the three file management systems (FAT) patents related to the GPL 2-covered Linux kernel.

And Microsoft gets covered but doesn't have to pay for the four TomTom patents it was allegedly offending.

Microsoft claims that the way the patent coverage is constructed "is fully compliant with TomTom's obligations under the General Public License Version 2" complements of a legal workaround, a variation on the Novell accord.

It said, "TomTom will remove from its products the functionality related to two file management system patents (the FAT LFN patents), which enables efficient naming, organizing, storing and accessing of file data. TomTom will remove this functionality within two years, and the agreement provides for coverage directly end customers under these patents during that time."

In a statement Microsoft deputy counsel Horacio Gutierrez remarked that the FAT patents have been "licensed by many companies, including those that produce mixed source products."

"We were able to work with TomTom to develop a patent agreement that addresses their needs and ours in a pragmatic way," he said. "When addressing IP infringement issues, there are two possible paths: securing patent coverage or not using the technology at issue. Through this agreement, TomTom is choosing a combination of both paths to meet the unique needs of its business, and we are glad to help them do so."

The episode was only the third time in its life Microsoft sued somebody for patent infringement and the very first time it took out after Linux although it has protested for years that Linux infringes on its IP.

Microsoft settled all three suits out of court. Before filing suit and complaining to the International Trade Commission in late February, Microsoft reportedly chased TomTom for over a year trying to get it to license its patents and so wanted treble damages.

Now the questions are whether the open source community will challenge the agreement and who's next?