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.