Why the Turbo Hercules case matters

Patents are monopolies on inventions which are limited in time, but what IBM seems to have done is to patent each addition it made to its mainframe technology, the way movie companies re-assert copyrights on old movies so the public domain can't exist.

When I wrote about Florian Mueller's defense of TurboHercules yesterday I got a reaction I describe as "crickets." Which is to say, no reaction.

That's a shame because while I kept my tone light there are serious issues involved.

Most reporters think the central issue is whether IBM broke its promise to the open source community by asserting patent rights it previously claimed it would not assert against open source. IBM says it did not break its promise. Mueller says it did.

What really seems at issue, according to a long post Hercules founder Roger Bowler posted, is that he sought to turn his project into a company. He writes many IBM employees have used his software and IBM even published a chapter on it in one of its Redbooks.

It was only when Hercules became TurboHercules that IBM objected, Bowler said. That could prove important to a court. Patent lawyers don't care whether your rip-off is made for business or pleasure, and failure to assert rights can often put them at risk.

Of course, a patent case is not yet before any court. After IBM waved its patents at Bowler he filed a complaint with the EC's anti-trust authorities, saying IBM was illegally tying its mainframe software to its hardware.

It's important that TurboHercules fired the first real legal shot, and that it did so in Europe. Europe has lately been more aggressive against U.S. tech monopolies than American authorities, and software patents are illegal there.

They may soon be illegal here. Bilski vs. Kappos, challenging the whole idea of software patents, was heard by the Supreme Court in November. A decision could come any day defining not just the legality of such patents but their limits, what types of software can be patented and what types can't be.

I also want to call attention to what's being protected here. Mainframes have been around for decades. IBM fought the law for decades to protect its monopoly, and the fight only ended when it ceased being an issue in computing's evolution.

Yet the market remained. It still remains. There are big profits in backwaters. We are not arguing about the state of the art.

Patents are monopolies on inventions which are limited in time, but what IBM seems to have done is to patent each addition it made to its mainframe technology, the way movie companies re-assert copyrights on old movies so the public domain can't exist.

Thus we come to the most basic question in intellectual property. What are its time limits? The purpose of legally created monopolies is to encourage people to create more stuff. How does it benefit society if a monopoly becomes eternal, if it continues to exist for generations after the creator has died?

I'm not trying to answer many questions here. You need to answer them. In a democracy you have the power. Your silence gives elites the power to ignore you.