Given the failure of the Bilski case to change the status quo regarding software and business method patents, the search is on for scapegoats, for weak sisters in the anti-patent fight who can be made open to criticism.
It is similar to what happens after a losing political campaign. Those most committed to the cause argue that it's weak supporters, those willing to do business under the given circumstances, who are responsible for their political failure.
So it is that Florian Mueller of Fosspatents has seized upon IBM.
IBM has supported open source, it has arranged its business model to support open source, it contributes people and money to programs like Eclipse, but it has a lot of patents and continues to accumulate them.
It does business with the other side, in other words, and acknowledges reality.
To Mueller this makes IBM anathema. Just as business Republicans are seen as anathema by members of the Tea Party, Mueller sees IBM's acceptance of reality as threatening the movement he believes in. IBM is John McCain, and Mueller supports J.D. Hayworth.
For evidence, Mueller points to IBM's own friend of the court brief in the Bilski case, which while friendly toward open source did not demand that courts make worthless the hundreds of millions it has spent over the years securing patent rights.
Specifically he objects to the third section of the brief, headlined "Software inventions that make technological contributions are patentable." What brings him to the boil is this sentence:
"Patent protection has promoted the free sharing of source code on a patentee’s terms---which has fueled the explosive growth of open source software development."
This is IBM's position, and appears to be the position of the court as well. It's not Mueller's position. It is, in fact, directly contradictory to his position.
But let's be clear about where people stand. IBM does not put out its code under the GPL. It prefers the Eclipse license. Mueller, by contrast, is a FOSS advocate. FOSS and open source are different.
Thus Mueller calls IBM's brief "the worst lie ever in the software patent debate," calling IBM's stand "a mockery of freedom." In other words, IBM is an enemy because its brief seems to be what the Roberts court followed most closely in making its decision.
What say you? Can IBM still be a friend to open source, or are you for joining the Florian Mueller Tea Party?