On Monday IBM said it will allow open source developers the royalty-free use of 500 of its 10,000 US patents. However, Florian Mueller, the campaign manager of an anti-patent Web site, has accused IBM of hypocrisy as it is also lobbying the EU to push through the Computer Implemented Inventions Directive , which many believe would allow software patenting in Europe.
"IBM is just being hypocritical because they want to appease the open source community and make themselves popular," said Mueller.
"In Europe, IBM is a driving force behind the extension of the scope of patentability with respect to software. If IBM wants to assume the role of a post-Christmas benefactor, they'd better stop their aggressive patent lobbying in the EU and their shameless squeezing of small and medium-sized companies with its patent portfolio."
In response, IBM insisted it was making a "valuable pledge" to the open source community.
"We will actively file patents but we recognise that for certain areas of software development there is the need for software companies to collaborate more. We’re not saying we’re abandoning patents -- there needs to be a balance between the two," said an IBM UK spokesman.
IBM is a member of pro-patent organisation EICTA. According to sources it has also individually lobbied political parties to push through the directive.
A spokesman for Germany's ruling Social Democratic (SPD) party, which spoke out against the directive in October, told ZDNet UK that IBM has put pressure on it both individually and through EICTA to support the directive. In particular, Fritz Teufel, the head of IBM's patent department in Germany, has been involved in pushing through the software patent directive, according to Mueller and the FFII, which has a Web page dedicated to Teufel.
Other anti-patent campaigners claim that IBM's recent move proves that software patents cause damage to open source software. This is a concern of many prominent open source developers, including Linux creator Linus Torvalds, Knoppix founder Klaus Knopper and MySQL co-founder Michael Widenius. But this risk was denied by the UK patent office (UKPO) at a meeting held at the Department for Trade and Industry (DTI) in December.
Michael Tortolano, a senior software manager at technology company Home Media Networks Ltd, said IBM's decision highlights the damage that patents cause to open source software. He is concerned about the threat that patents pose to small businesses such as his own.
"We've been told all along by the EPO (European Patent Office), the UKPO and the DTI that 'software patents do not hurt open source software', but here is the world's largest software patent holder openly admitting that they do," said Tortolano. "IBM's exclusion of small businesses perfectly highlights that software patent portfolios have enabled multinational corporations to become legislators of who can and cannot develop computer software."
James Heald from the FFII agreed that IBM's move is a "clear recognition" of the "difficulties that patents present for OSS [open source software]". He said that IBM's move is positive, but will not protect open source software from patent attacks from other companies.
But Mark MacGann, the director general of pro-patent organisation EICTA, disagreed that patents are a threat to open source software.
"This decision by IBM to grant access to the key innovations covered by 500 IBM US patents is a strong example of the compatibility of computer-implemented invention (CII) patents with the OSS development model," said MacGann. "It clearly demonstrates how CII patents can be used to support OSS development."