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OSRM: Analysis of IBM's Patent Pledge to Open Source Software

Jan 15, 2005, 03:00 (10 Talkback[s])
(Other stories by Daniel Egger)

By Daniel Egger
Founder and Chairman, OSRM

Many cheered this week when IBM pledged open access to 500 of its software patents for the open source community, and rightly so. This was the first step in what will hopefully be a comprehensive movement towards disengaging the patent arms race, which has proliferated throughout the software and IT industries for at least the last decade. That disengagement will result in a more productive and efficient economic environment where resources are allocated not towards the inefficiency of potential and actual patent litigation, but rather towards development of technological solutions consumers need and deserve. IBM has long been at the forefront of using the patent system to advance its customers’ interests, and it now also realizes that sharing with those who themselves believe in sharing is the right move for the future.

That said, there are still some issues the open source community should be mindful of when reviewing the IBM pledge. First, while IBM is the largest patent holder in the world, thousands of software patents are held by hundreds of other companies, many of whose sentiment toward open source is either unknown or openly antagonistic. Not the least of whom is Microsoft. It has been long theorized that IBM would not use its patent portfolio to impede open source software--at least not against open source software programs that are not competitive with IBM’s other product and service offerings. As such, IBM's pledge was not so much a surprise as it was an affirmation of what was already reasonably presumed. One can hope that others follow suit; but that remains to be seen. As such, IBM's pledge, while significant, of course does not protect open source software from software patents held by others. Therefore, the risk that third party patents other than IBM’s might be used to impede open source software is still very real.

Second, IBM's pledge does not protect open source software from the many other patents owned by IBM that are not included in the pledge. While IBM's generosity is unquestionably commendable, the pragmatic question is: why did IBM limit the pledge to just the specifically identified 500 patents? By doing so, the possibility that IBM could use its many other patents against open source software remains, which it may very well wish to do particularly with respect to open source software programs such as JBoss and MySQL that directly compete with its flagship products WebSphere and DB2. Therefore, the risk that IBM might attempt to use its other patents to impede open source software, particularly programs that could potentially pose a competitive threat, is still a real possibility.

In the end, what IBM has done is undoubtedly beneficial for the open source community. Not only are the 500 patents legally significant, but the signal such a pledge sends to the world helps further buttress the already strong reputation of open source software. We will have to wait and see whether other patent holders share IBM's view of the future of software development and the proper role of patents. I have no doubt that many if not most will, eventually. However, short and long-term action remains necessary. In the interim, users and developers of open source software must be aware that they remain at risk of having patents, even some of IBM's, being used in an attempt to stop its development and dissemination. And, while actions such as IBM’s pledge advance the cause, the only long-term solution is comprehensive patent reform, as it is the dysfunctions within the U.S. legal system that are the root of the overall patent problem.

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