IBM's open patents are just the first step

IBM's decision to make five hundred patents available for open source use is a welcome start to 2005. Despite Bill Gates' recent comparison of open source reformers with communists, the most compelling analysis of IBM's move is that it is entirely in the company's capitalistic interests so to do. It has decided that open source creates an environment in which it can be competitive: patents threaten open source. By making a public, irrevocable and unambiguous commitment to use its patents in a way that encourages open source development, IBM expects to reap concrete commercial advantages. This is not a philosophical or moral decision.

Although IBM's move is welcome, it's not as immediately helpful as it might seem. The standard advice for programmers and designers trying to avoid patent conflicts in new software is "don't" - because patent law and practice is a minefield for the non-lawyer, a Humpty Dumpty world where trying hard with the best will in the world can cost you far more than not trying at all. Designing software that uses techniques from IBM's list will remove some risk, but unless lots of other companies join in there is still substantial danger in open innovation. That's one of the joys of software patents -- each design decision in a single piece of code can potentially infringe.

IBM needs to go further. As a member of EICTA, it remains publicly committed to a strong software patent regime in Europe: a strange position for a company simultaneously trying to negate the dangers of the American system. At the least, it needs to make its European position consistent with today's action -- and the time to do so is now, as momentum builds within the European Union for a complete rethink on the issue.

The best effect that IBM's decision could have is on other proprietary software companies. If IBM, which makes more than $1bn a year from IP licensing, is prepared to make that big a bet on open systems, how much could the others lose from sticking to the old ways? Gates should reconsider: any world view which sees IBM as a communist organisation is dangerously skewed and needs a reality adjustment. The world won't wait for Microsoft to catch up.