The devil is in the details [LWN.net]

The devil is in the details

Posted Jan 13, 2005 11:31 UTC (Thu) by filipjoelsson (subscriber, #2622)
Parent article: IBM's patent pledge

So, a high profile company with patents of their own decide to take IBM up on the offer - and include some IBM patented technology in an open source project. (Perhaps the engineer doing so thinks; "hey, IBM licensed this for open source projects - I don't have to ask the legal dpmnt for this tiny detail.")

By doing so, the company has effectively licensed _all_ of their patent portfolio to open source projects. IOW IBM withholds all but 500 patents, but in doing so they deny anyone who take them up on their offer the ability to withhold anything at all.

This is a very unbalanced license.

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The devil is in the details

Posted Jan 13, 2005 15:18 UTC (Thu) by ncm (subscriber, #165) [Link]

This is something Lucent tried when they released Plan 9 under similar conditions. Arguably, they doomed Plan 9 by it. By the time Lucent released it under a really-free license, the hardware base had moved on, Plan 9 had already been dismissed from most potential adopters' minds, and Linux had matured.

IBM's game is different enough that it might turn out better for them, but this sort of trick tends to bite back in surprising ways.

The devil is in the details

Posted Jan 13, 2005 17:53 UTC (Thu) by rgoates (subscriber, #3280) [Link]

I don't understand your argument. How does a company's use of one of the 500 IBM patents in an open source project effectively license all that company's own patents for open source?

The devil is in the details

Posted Jan 14, 2005 0:15 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

Because if the second company tries to assert one of its own patents against an open source project, IBM will withdraw that company's right to use the IBM patents.

IBM's right to revoke

Posted Jan 14, 2005 1:48 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Actually, IBM's pledge says IBM's right to revoke is based on whether the patent user files a lawsuit, not asserts rights.

And I'm sorry to see that. It reinforces the mistaken impression many people have that lawsuits are bad things and inequities are caused by the availability of a court system.

Lawsuits are good. They protect little guys from big guys; nice people from immoral ones. The problems that get ascribed to lawsuits are actually due to the underlying liability that allows one to win a lawsuit. All a lawsuit is is a way to get money from someone who owes you (at least in your opinion) and won't pay.

IBM's pledge creates a bizarre situation where if Company A writes a letter to Company B saying, "Hey, you're using our patent. Pay up" then to exploit IBM's generosity, Company B has to say, "Screw you. I'm stealing your invention and you can't stop me!" I.e. he has to make Company A sue him even though he knows Company A is right. He has to be immoral. It would be better if IBM said "asserts rights" instead of "files lawsuit," because then the letter would never come in the first place. In fact, upon request Company A would probably have to send a letter saying, "you're welcome to use our patent."

The devil is in the details

Posted Jan 14, 2005 16:41 UTC (Fri) by filipjoelsson (subscriber, #2622) [Link]

From the beginning of this article:
"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."

So, if I have a patent - I can ask for money, but if the other ditributor will not give me any - I can't sue. It is not enough that I too license 500 patents to open source, or a proportional part of my patent portfolio (compared to IBM). No, if I want to sue for some reason - I have to ask IBM for permission.

The only way out of this license mess, is if an equally strong player as IBM take them up on the offer - and license another 500 patents. Preferably patents that the licensor knows that IBM is already using - without paying for the priviledge. Now, there are not that many such players - but perhaps Intel, AMD or Novell are strong enough?