IBM's recent patent pledge
significantly lowers the bar for using their patents to implement software
standards. Rather than specifying particular patents, IBM chose more than
150 different standards for interoperability, pledging not to assert any
of their patents that are required to implement the standards. Along with
the carrot of that pledge, there is also an implied stick for companies that
might consider litigating over their own patents that are required to
produce the standard.
Software patents are generally problematic, but those which encumber
technology standards can be especially so. When companies come together to
form standards bodies, they have often agreed that implementations of the
standard would be able to license any patents required, under so-called reasonable
and non-discriminatory (RAND) terms. "Reasonable" is in the eye of the
beholder, of course, and RAND terms have been used to lock out smaller
companies from implementing patented standards along the way. Free and
open source implementations are usually locked out, because "reasonable"
terms almost always include royalties. Thus, RAND terms are usually
discriminatory against free software.
This has led some organizations,
notably the World Wide Web Consortium (w3c), to move to an agreement that
patents required to implement their standards be licensed on a royalty-free
basis. This simplifies things, but requires some amount of bureaucracy as
standards participants need to list relevant patents and create documents
that state the nature of the royalty-free license.
IBM's move circumvents all
of that, by pledging not to assert patent claims against any
implementation of the listed standards. The pledge not only covers
free implementations, but competitive, commercial, closed source versions
as well. The patents themselves do not need to be researched or listed as
the pledge covers any that IBM has. It should be noted that this
only applies to implementing the standards listed; IBM is not giving carte
blanche to use their patented technology.
The only caveat is that IBM will revoke the pledge for any
implementor who asserts patent claims on a covered implementation - against
IBM or any other party. For any of the standards listed, IBM is
thus creating a "patent shield" for anyone who plays fairly, with the
implication that unfair play - in the form of patent attacks - may be met
with similar attacks from the rather extensive IBM patent portfolio.
Because it is a pledge - not a license or agreement - projects or
organizations that want to be covered by it need do nothing. There is no
paperwork to file or license text to comply with. They will need to
refrain from engaging their patent lawyers to attack others implementing
the standards; this should be a constraint that most free software projects
can live with. It is rather refreshing to see a company make a
pledge that could plausibly reduce the amount of billable lawyer time
required by technology companies. Patent lawyers may not agree, of course.
The list of standards that are covered by the pledge is an impressive array
of technologies, mostly web standards along with OASIS document format
standards. The FAQ
accompanying the pledge states that IBM will be evaluating additional
standards for inclusion in the list. They clearly believe widely
implemented standards are good for their customers:
IBM is making this Pledge to encourage broad adoption of open
specifications for software interoperability. Broad implementation of these
specifications can dramatically improve our customers' ability to
communicate data within and between their enterprises.
There is clearly a public relations aspect to this pledge, but one gets the
sense that IBM truly does want to simplify the software patent landscape.
They have, perhaps, the largest patent portfolio in the world, but they
can also see the mess that software patents, especially patent trolls, are
causing. If other companies make similar pledges, definite progress will
have been made, at least for interoperability. Since it appears that software
patents will be with us for a long time to come, at least in the US, any
step forward should be cause for at least a bit of celebration.
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