IBM's 500 Patents: Gift or gauntlet?

Summary:On one hand, the 500 patents that IBM has released for unencumbered use by open source software developers is a giant step in the right direction, if you ask open source attorney and advocate Larry Rosen. Said Rosen in my podcast interview (download the MP3) of him, "IBM is saying we will not assert these patents against you and that's a great relief.

On one hand, the 500 patents that IBM has released for unencumbered use by open source software developers is a giant step in the right direction, if you ask open source attorney and advocate Larry Rosen. Said Rosen in my podcast interview (download the MP3) of him, "IBM is saying we will not assert these patents against you and that's a great relief." On the other hand, some members of the anti-patent movement, particularly those in the European Union like Florian Mueller, the campaign manager of an anti-patent Web site, are accusing IBM of hypocrisy.

But, is there more to IBM's pledge of non-assertion than meets the eye? Could IBM's posession of certain patents actually work to the benefit of the open source community in ways it's not imagining? According to the official text of the pledge, there's an exception clause that virtually guarantees revocation of a developer's right to use the patents:


"..the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is 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."

According to Rosen, this language -- which he refers to as the legal language of mutually assured destruction -- is a reasonable way of turning the pledge into a double-edged sword. During the cold war, according to Larry Rosen, the United States said "we're going to protect South America and Europe and other portions of the world with our nuclear shield. And if you go after us, or any of them, be prepared to have our nuclear weapons strike you. I don't think that's necessarily an ineffective way of dealing with a problem."

Rosen characterized the open source community as being somewhat defenseless against ruthless patent infringement claims, and said "In terms of intellectual property strategy, the open source community on its own does not have a lot of patents and it is subject to what happens by other companies who do have patents. In this case, IBM is saying two things. First of all, 'Those patents are now available to the open source community without any worry. We won't assert them against you.' Second of all, it's trying to impose this very specific and well-defined shield and saying, 'Not only are these 500 patents available to the open source community, but, we may assert these 500 patents against anyone who sues the open source community' and that's a kind of 'you bomb us or our friends, and be prepared to be bombed back.' There's nothing necessarily unethical about it. Countries do it. So should companies.

So, who should be thinking twice about suing the members of the open source community? Perhaps Microsoft. Has the eve of a patent nuclear war arrived, or will the cold war hold? Only time, and a handful of patent attorneys, will tell.

Topics: Patents

About

David Berlind was fomerly the executive editor of ZDNet. David holds a BBA in Computer Information Systems. Prior to becoming a tech journalist in 1991, David was an IT manager.

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