IBM's patent offensive

[This article was contributed by Joe 'Zonker' Brockmeier]

IBM's response to SCO's suit last week was met with quite a bit of enthusiasm from the Linux community, but with a tinge of concern as well. Many in the Linux community are concerned about IBM's use of patents to strike back at SCO. While IBM's patent claims are not unexpected, and in fact are sound legal strategy for Big Blue, many worry that IBM may someday use its huge patent arsenal against competitors in the Linux marketplace and not simply as a defensive mechanism against legal predators like SCO.

We took a look at IBM's patent claims to see how they might affect the Linux community, and if Linux projects or vendors could be subject to claims by IBM. It seems, at first glance, a little odd that IBM has chosen to only claim infringement on four of their patents. IBM has thousands of patents, it seems very likely that it could claim that SCO infringes on dozens of patents. However, the patents IBM has chosen affect most of SCO's non-Linux products -- namely, UnixWare and Open Server, Reliant HA and SCO Manager. Users looking for SCO Manager on the SCO website will find that it's not linked to their product section anymore -- but using Google Cache it appears that sales have been suspended.

The first patent infringement claimed by IBM is patent 4,814,746: granted March 21, 1989. This patent covers an adaptive method of compression of data for communications between a host and remote terminals. IBM claims that this patent is infringed by both UnixWare and Open Server.

The second patent claim by IBM is patent 4,821,211: granted April 11, 1989. This patent covers "navigating among program menus using a graphical menu tree" using a pointing device, and IBM claims that SCO Manager infringes on the patent. This seems like a rather obvious invention, and the patent could probably be used against a number of programs. According to the patent, it is novel because of:

This claim limits the patent from being applied against just any GUI application with a menu, but certainly could be applied against applications that allow access to databases on other machines, GUI front-ends for CVS, and a number of other applications you might find being used on Linux.

IBM's third claim is patent 4,953,209: granted August 28, 1990. According to IBM, SCO is infringing on this patent with the UnixWare product. This patent covers a "self-verifying" technique to show that a user has received a data object, agreed to the conditions of the data object's receipt or use, and has installed in for reading or use. Not just the display of the license, but a method of verifying after the fact that the user has actually taken some action to indicate that they have agreed to the license.

Basically, this patent covers a method of distributing software and having the user agree to a license without the need for the vendor to distribute any physical media. A "clickwrap" license scheme, if you will. While this patent may apply to some products that run on Linux from proprietary vendors, it seems unlikely that this patent poses a serious threat to the open source community in general.

The fourth and final (at least for now) patent claim is patent 5,805,785: granted September 8, 1998. This is the only patent that IBM is using against SCO that doesn't predate Linux. IBM claims that SCO's Reliant HA high-availability clustering solution infringes on this patent. This patent covers monitoring and recovery of systems in a distributed or clustered system, and specifically the "detection of and recovery from open-ended, user defined failure events occurring in interdependent subsystems" as opposed to a set of predefined failure events. It seems likely that IBM could also make a case against several products and projects in the Linux space related to clustering with this patent -- if they chose to do so.

While IBM has an enormous patent warchest to draw on, SCO a/k/a Caldera has only one patent to its name; patent 6,529,784, granted March 4 this year. This patent covers "a method for providing system management services to a customer's network of target computers through a communications network." This patent may be of interest to Linux users, as it seems to specifically deal with package management and software dependencies. We may yet be hearing from SCO on patent matters, in addition to their other nebulous claims.

IBM has not proven eager to emulate Amazon in using its patents to damage competitors, but its hands aren't entirely clean, either. There is, for example, the oft-cited case of IBM demanding $20 million from Sun using the threat of patent litigation. While IBM has not been on the patent warpath of late, there's nothing to stop them from deciding to start using their patents against other Linux vendors or community projects that might compete with IBM for customers.

There is no evidence that IBM is gearing up to use its patents against the Linux community at this time, and it does seem unlikely that the company would be willing to squander the goodwill it has accrued thus far. However, there was a time when it seemed unlikely that SCO (née Caldera) would be attempting full-on legal warfare against Linux and the General Public License.

It might be prudent for the community to begin seeking guarantees from IBM, and other Linux vendors with substantial patent portfolios, that they will not use their patents against open source users, projects or vendors. It would also be advisable that members of the open source community work towards modification of the patent system. It seems very likely that patent threats will be the next major hurdle that Linux and open source face -- if not from IBM, then certainly from companies like Microsoft or Sun that are directly threatened by the continued adoption of Linux and open source.