On January 11, IBM
that it would make 500 patents available for use in projects using Open Source Initiative
The list of patents and IBM's pledge is available as a
. According to the statement, IBM has indicated it will not assert
any of the 500 patents against distributors of open source software, so
long as the distributing party does not file lawsuits using patents or
other intellectual property rights against open source software.
The list of patents ranges from a "Method and apparatus for batching the
receipt of data packets" (U.S. Patent Number 5,260,942) to a "System and
method for ensuring QoS in a token ring network" (5,642,421). Given that
IBM has listed 500 patents, this reporter has not had time to read each
patent, but suffice it to say that the patents cover a wide range of
applications from human language processing to web services and data
Reaction to IBM's move has been mixed. OSDL's Stuart Cohen is apparently in
support of IBM's pledge, and Larry Lessig was also quoted as saying
that it was "exciting."
Others were not so impressed. Florian Mueller points
out that "We're talking about roughly one percent of IBM's
worldwide patent portfolio. They file that number of patents in about a
month's time." Mueller also called it a "diversionary
tactic, which may be accurate given IBM's support
of the European Patent Directive that has been denounced
by many of the leading members of the open source community.
There is ample room for skepticism. IBM's move offers up only a small
portion of its patent portfolio for use by open source projects. To put
it another way, IBM is withholding the remainder of its patent portfolio,
without any assurance that open source projects (with the exception of the
Linux kernel) are safe from potential litigation.
We spoke to IBM's manager of worldwide Linux marketing strategy, Adam
Jollans, about the patents. Jollans said that IBM was "seeing a shift
from innovation in commercial companies to cooperative innovation,"
and that the patent pledge was a way to support that.
We asked why IBM picked 500 rather than 50 or 5,000, or simply giving open
source a pass altogether. Jollans said that IBM "has to start
somewhere" and that 500 was a number that would prove it
was a significant announcement. No reason was given for holding back the
majority of IBM's patent portfolio. Jollans did say that IBM's choice of
patents was not random, and were picked because they were "500 that
we believe will be useful" to open source.
IBM's move could also be seen as an attempt to take some of the steam out
of the anti-software patent movement in Europe as the EU considers a motion
over with the software patent directive. We also asked why IBM had not
chosen to take a stand against software patents altogether. Jollans said
that IBM supported patents, but that "patents should reflect
innovation rather than just a general idea."
Jollans said that IBM is encouraging other companies to step up and offer
the use of their patents for open source as well. Whether or not any
companies will do so is yet to be seen.
By offering only a small sample of its patent portfolio, IBM is
well-positioned to take offensive action should it ever decide to do so. If
there were an open source project that IBM wanted to quash, there are more
patents where the first 500 came from. IBM has
shown no interest in launching patent attacks against free software, and
the company certainly understands what such an attack would do to its
standing in the community. Even so,
there's no guarantee that IBM will always be so well-intentioned.
Ultimately, IBM's "patent pledge" is a good PR move, but little more. IBM
has little to gain from asserting its patents against open source projects,
and stands to benefit from the continued development of Linux and other
open source projects. By offering a non-aggression pact towards open source
projects, IBM effectively says it's OK to develop programs that might
infringe on (some of) its patents, so long as those programs are available to IBM
under open source terms. That's a far cry from the desired outcome of
barring software patents altogether, but it's still a step in the right
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