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:
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.