A new salvo in the software patent wars

• By Mike Gunderloy
• January 14, 2005

IBM - who, not coincidentally, own more patents than anyone - recently announced that they were going to give some of those patents away. More precisely, IBM is providing free access to 1 1/4% of its patents for open source projects. You can download an Abobe Acrobat file with the list of patents and the key points of IBM's pledge:

• Any project licensed under a license recognized by opensource.org qualifies
• 500 US patents and the corresponding foreign patents are covered
• The pledge is legally binding and enforceable
• It's irrevocable "except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software."

IBM's press release puts forward this move as a way to encourage innovation in software, and they've thrown down a bit of a gauntlet for other companies:

IBM intends for this pledge to form the basis of an industry-wide "patent commons" in which patents are used to establish a platform for further innovations in areas of broad interest to information technology developers and users.

But as usual for the computer industry, there's probably more going on here than meets the eye. Remember, IBM is making a fair chunk of money these days by supporting Linux. So anything they can do to promote the rapid development of Linux is probably going to come back to their benefit. Also, if they can get buy-in from a few more companies for this idea of a "patent commons" they can use that as a way to tweak those companies who don't come along for the ride (Microsoft seems a likely target here).

The other thing to keep in mind is that this sort of action could serve to help legitimize the software patent system in the eyes of some people who would otherwise be in favor of severely revamping it. Once you've started using software patents, it becomes very hard to maintain with a straight face that patents on software are a bad thing. IBM might well view letting go of a small percentage of its intellectual capital as a good investment in public opinion.

Finally, I find that clause on revocation very interesting. It opens the prospect of IBM acting as a white knight for the open source community. It's not quite as clear cut in that regard as Novell's patent policy, but it's one more step towards reassuring the corporate types that patents are not a bar to open source acceptance. This can only be a good thing.