IBM's patent offensive [LWN.net]

[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:

...the ability to visually display, in graphical form, the menu hierarchy for (a) the program that the user is currently using, (b) other programs on the user's computer, and (c) other programs on other computer systems to which the user has access.

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.

IBM's patent offensive

Posted Aug 14, 2003 4:56 UTC (Thu) by aaa27 (guest, #13650) [Link] (2 responses)

How do patents work with repsect to other countries? I remember learning the French (or even the European) office was quite careful in giving out patents (much more than in the US) and up to recently, didn't give software patents. The patents were assumed to (garanteed to?) hold in court.

When you fill in for a patent, you specify for which country it is for.
I don't know how works the extension process for a protection worldwide (what are the relevant patent offices, but I doubt US patents are taken as is and not carefully studied by the European Patent Office)

So my guess is for now there is no patent issue in Europe (yet?). And you are perfectly allowed to use something protected by a patent in country A if you are in country B where that patent has not been taken (or granted).
That could possibely lead to software being legal in some countries, and deemed infringing in others.

Also, patents were kept secret for a while (2-3 years) then published.

All I hope is that Europe turns down software patents.

--
André

IBM's patent offensive

Posted Aug 14, 2003 8:46 UTC (Thu) by pointwood (guest, #2814) [Link]

This is one of the major fights in Europe right now - the fight against software patents. So far "we" haven't been doing that well :(

Another big issue: Even though software patents isn't really allowed in Europe, thousands exists anyway :(

Basically, you're sadly mistaken if you think software patents isn't a problem here :(

More info can be found here:
http://swpat.ffii.org/ and/or http://www.eurolinux.org/

IBM's patent offensive

Posted Aug 14, 2003 9:41 UTC (Thu) by dps (guest, #5725) [Link]

Software has been patentable in the EU or so I heard---provided you made into a physical device and then sue people for "equivalent" software. Some people have suggested measures like putting it on a hard disc or whatever might be sufficient.

Personally if it *really is an invention* then I do not see why algorithms should not be patentable. Unfortunately 98% of the software patents I have heard about are not bona fide inventions, given that everything already patented and otherwise published is "obvious". (Execptions are things like Lempel-Zif, RSA, IDEA and that sort of thing).

Challenging patents is easier the EU: there is at least one case where the US goverment and a multinational corporation acting together were denied a european patent. There is no need for a commercial dispute to challenge a patent in the EU, as I understand is required in the US.

IBM's patent offensive

Posted Aug 14, 2003 11:02 UTC (Thu) by zooko (guest, #2589) [Link]

Perhaps IBM's executives are investing their company in open source only because they know that their fearsome patent portfolio can close out competitors and start charging end-users a fee for use anytime they want. Presumably they don't want to until there are more end-users (especially businesses) who are using the software that their patents give them control over.

RE: IBM's patent offensive

Posted Aug 21, 2003 11:52 UTC (Thu) by rabnud (guest, #2839) [Link] (1 responses)

Patents sounds rather icky: if software is patented but also freely editable (and redistribution is required by GPL), does the patent continue to cover the edited code, or does the new code constitute new works? If new code is not covered by a patent, define "new works" - does it begin with an added brace? A new conditional statement? A falsely placed comma?

Either the code is free of restrictions to the public or it is not free of restrictions, can't be both, IMO.

RE: IBM's patent offensive

Posted Aug 25, 2003 10:15 UTC (Mon) by wookey (guest, #5501) [Link]

It sounds like you are confusing copyright and patents. With patents, changes to the code itself don't make any difference at all - it is the final effect or device that counts. In software terms this means it doesn't matter what language you write it in or what the code looks like - if it does the 'claimed thing' then you can be sued for infringement. This is the big difference between copyright (which we generally find a good and useful thing) and patents (which we don't). With copyright you are free to re-implement an idea in a new way and compete with the original version. With Patents you aren't - even inventing the idea yourself entirely independently is no defense. The EU vote on software patent legislation is on Sept 1st - if you are in the EU and haven't hassled your representative (or even told them from an American perspective how bad it all is) then yesterday is the time to do it.