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IBM Patent Bombshell: "The Windows Patent Strategy Is...Over," Says Groklaw

The Largest Pledge of Patents in U.S. History

"The landscape just changed....Thank you, IBM. Thank you," writes Groklaw's editor-in-chief Pamela Jones, heralding the announcement yesterday that IBM will today announce that it's making 500 of its software patents freely available to anyone working on open-source projects like Linux.

"The Windows patent strategy is so over," adds PJ. "And the next time Bill Gates tries to call this new kind of software development a kind of modern-day communism, as he did so offensively the other day, people will simply laugh in his face."

The IBM plan, announced late yesterday, is to donate the 500 patents for free use by software developers - a move which Reuters immediately reported as "marking a major shift of intellectual property strategy for the world's top computer maker and a challenge to the high-tech industry."

Jim Stallings, IBM's vice president in charge of intellectual property, said in an interview - Reuters added -that the move was meant to encourage other companies to unlock patent portfolios in order to spur technological innovation.

The news agency drily noted that the donation "coincides with an announcement by the U.S. Patent and Trademark Office that IBM topped the list of annual patent recipients for the 12th straight year, with 3,248 patents -- or 1,314 more patents than No. 2-ranked Matsushita of Japan, known for its Panasonic brand."

Meantime the Washington Post is reporting his morning that Microsoft "has embarked on a campaign to quickly acquire as many software patents as possible. The effort is being led by Marshall Phelps, who spent more than 20 years at IBM and was the architect of its patent strategy."

Microsoft, the Post notes somewhat understatedly, "has warned customers that open-source software could infringe on Microsoft's patents."

The pledged patents have been posted on IBM's Web site at http://www.ibm.com/ibm/licensing/patents/pledgedpatents.pdf and the company says in its accompanyng statement:

IBM's Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS

The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the programs source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge..

Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software.

In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software

Early speculation among the FOSS community includes the thought that this move by IBM might be the start of a 'viral' subversion of the patent system, in just the way that the GPL arguably is for copyright.

"Imagine a time in a few years, where a lot of companies have done the same thing that IBM does," says for example Andrew Giddings, a UK software developer. "Each of those companies is then committed to the OSS patent pool, and can't threaten any OSS with a lawsuit on any particular patent without losing access to all the rest. And of course, the more companies that join in, the more patents are in the pool, and the more attractive it becomes.'

More Stories By Jeremy Geelan

Jeremy Geelan is Chairman & CEO of the 21st Century Internet Group, Inc. and an Executive Academy Member of the International Academy of Digital Arts & Sciences. Formerly he was President & COO at Cloud Expo, Inc. and Conference Chair of the worldwide Cloud Expo series. He appears regularly at conferences and trade shows, speaking to technology audiences across six continents. You can follow him on twitter: @jg21.

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Most Recent Comments
Mike 01/17/05 10:12:18 PM EST

I never really cared much about IP until I started using Linux about 2 years ago and the more I learn the more Pissed I get.
I read this story and also went to view most of the 500 Patent
IBM opended up. And I can't believe that the U.S. Patent Office is so Dumb. Some of the Patens are so crazy it would be funny if they weren't real. They are akin to (I want a patent cause I got in my black car and drove to the store on a certain path. So nobody else can drive that way in a black car unless they pay me.) It's complete BS! I say there should not be IP or any patents on it. Im a programer in training and as far as i care "ALL YOUR" code is open for me to learn from and use if you don't like it to bad. Make your code/program Sell it if you can. If not it wasn't good enough. If someone else later comes out with somthing similar that is better and out selling your software then you should have thought of it first. The Best will always beat out the rest no matter what. Biz is all about the money right so when you sale a program make sure it is the best. And quit trying to make up for your short comings by suing
people its the lazy mans way of making money.

Michael 01/17/05 08:11:33 PM EST

Some of them look good to me..

From the Press Release and the list is on the IBM web site.


I think some of the ones they released are so they can build better Open Source Systems using IBM Global Services without getting stuck later.

It is a Leap in the right direction, Also if MS claims any of them and tries to Sue the Open Source Community. Then IBM has a Right to Remove it From the MS Collection (MS has free use of all IBM Patents and IBM has Free Use of MS's). This would break XP instantly if not MS SQL. This new clause makes it harder for MS to stop IBM Selling Open source Boxes, and services.

Patents included in the pledge relate to many aspects of software innovation. Several of the patents cover dynamic linking processes for operating systems. Another is valuable to file-export protocols. The pledged patents cover a wide spectrum, including patents on operating systems, databases, methods for testing programming interfaces, and even cursive text recognition.

Mike Nelson 01/14/05 02:45:06 AM EST

IBM has patents dating back to near the beginning of time, does anyone know off hand how old any of these patents are. If all their doing is giving up the rights on things as old as DOS 3.1, of what use is that to the open source community.

Doubting Thomas? 01/12/05 12:18:43 PM EST

///The Piltdown hoax inspired David Hannum to declare, "There's a sucker born every minute"... and IBM was listening.///

Ouch! rather harsh, no?

Daniel Wallace 01/12/05 07:21:55 AM EST

> The strength of the Open Source licenses has always
> been that they were based on Copyright law and in ten
> years no one has been able to mount challenge against
> them.

The Piltdown man was "discovered" in 1913 and wasn't
exposed as a fake until fifty years later in 1953.

The Piltdown hoax inspired David Hannum to declare, "There's a sucker born every minute"... and IBM was listening.

Aussie John 01/12/05 12:52:21 AM EST

The strength of the Open Source licenses has always been that they were based on Copyright law and in ten years no one has been able to mount challenge against them.

The patent card was always a worry and it was only a matter of time until Microsoft's stock price drops to the point where Microsoft (themselves or through another proxy like SCO) would have initiated a patent based attack.

IBM have signaled in the past that they would use their patent portfolio to defend their open source interests (principally Linux and the GPL) and this latest very public statement of support for open source in general is very welcome.

Thank you IBM and you are welcome to the profits that result from including open source in your business plan.

Daniel Wallace 01/11/05 12:19:50 PM EST

IBM knows full well that you can't implement
a "public" license to regulate derivative works.
It's against public policy. Those OSI licenses
are prattling nonsense.

Congress reserved the sole right to regulate
copyrights in the public domain by passing
section 301 of the Copyright Act.

IBM just wants cuddly little open-sourcers to
like it before it eats them. The patent license
isn't worth the match required to burn it.

Daniel Wallace

Per Abrahamsen 01/11/05 11:34:41 AM EST

This is very good for free sofwtare and it is very good for the economy. I love how IBM apparently both get free software, and is intend of passing this understanding to others. It was seen in the Linux prodigy commercial which in very simple terms explained the power of free software to laymen, and it is seen in this quote from the article:

In recent speeches, for example, Samuel J. Palmisano, I.B.M.'s chief executive, has emphasized the need for more open technology standards and collaboration as a way to stimulate economic growth and job creation.

What I don't see is how it directly help IBM. Of course, economic growth and job creation will indirectly help IBM, as IBM will likely take its fair share of an expanding economy. However, that would put "enligthened self interest" to the extreme, with a bit of hybris in it. Red Hat can calculate that way, better have a smaller part of big Linux market, than dominate a small Linux market. But IBM isn't as dominating in the world economy as Red Hat is in the Linux market.

Of course it is possible that the move is a pure PR stunt, and the patents are worthless anyway. But I'm not that cynical.

geminidomino 01/11/05 08:27:27 AM EST

If I were to use some patented algorithm *shudder* in a BSD Licensed program, could someone take that and wrap it up in a closed source program? Or could they just take the non-patented code? Or would it reduce the BSD license to effectively another GPL by forcing the code to stay open?

femto 01/11/05 07:27:38 AM EST

Surely this has been in the pipline for a long time? Who is behind it?

Is this something IBM has done of its own accord, or is there an organisation out there (eg. OSDL) driving this? Consequently, is IBM the only company to do this, or are they the first cab off the rank with other companies to follow quickly?

Anyone have some answers?

Dream Kid3 01/11/05 07:16:34 AM EST

///Think of how Linux's growth could be helped over the next few years if the overhang of MS lawsuits was removed, and their ability to embrace and extend using patents was curtailed? Maybe I'm dreaming, but its a good dream!///

how right you are - and you gotta have a dream, because if you don't have a dream, then how you gonna have a dream come true

smart move ibm 01/11/05 06:38:47 AM EST

IBM is losing nothing here. What they have gained is a great deal of goodwill, and given open-source development a boost. Remember they have a great deal of experience in bulding upon open-source projects, where there competitors generally do not - so anything good for open-source is good for IBM at the moment.
This is a smart move by smart people, and it follows in the footsteps of other smart moves. This is an indicator that IBM really understands how open-source can help their business, and if IBM continue in this fashion, they will make a great deal of money while the rest of the world catches up with them in the open-source stakes.

an00n 01/11/05 04:05:08 AM EST

What would be really cool is if IBM reworked its cross licensing agreements it has with big companies like Microsoft to say that they can only use IBM's patents if they extend their cross license to allow open source products to be used.

MS is still a relative newcomer to patents, but IBM is an old pro. As there are surely hundreds or thousands of patents IBM owns that are used by Windows, Office, etc. and probably only dozens that IBM software would make use of, IBM has the strong hand and could do this.

Think of how Linux's growth could be helped over the next few years if the overhang of MS lawsuits was removed, and their ability to embrace and extend using patents was curtailed? Maybe I'm dreaming, but its a good dream!

o'reor 01/11/05 04:03:41 AM EST

much as I appreciate that decision from IBM, I remain skeptical about the real potential of the licensed patents.
A few months ago I was working on a project that required the use of a particular data compression method (arithmetic coding), because of its great efficiency on the type of data I was supposed to process (uncompressed output from various audio codecs, including experimental ones). IBM owns no less than 19 patents on that algorithm and its derivatives. Sure, the first 3 of them are expired by now, but none of the others were in the 500 list.

Data compression is one of the areas where pure software patents are commonplace and very annoying, which makes your choices very narrow when it comes to choosing a compression method for your projects.

bergeron76 01/11/05 03:00:44 AM EST

This is great. I think IBM should be commended for this (assuming it's for a legit purpose).

This could be a huge "cold-war" style arms/IP race. These days when people vote with their wallets, it's nice to see that viable candidates are emerging...

Dave Taylor 01/11/05 02:59:39 AM EST

You bet they know what they're doing, and this should serve as a kick in the pants for Darl McBride at SCO too. Read my thoughts on it: http://www.intuitive.com/blog/archives/000913.html

Chuck Chunder 01/11/05 02:57:01 AM EST

It's not anti-free market at all. Patents distort a free market by creating artificial barriers to entry.

Nor are the motives "socialist" or necessarily "magnanimous". IBM's contributions to Linux could hardly be called that because they make them serious money. The revocation clause also buys something serious for IBM. As long as you use Open Source software that employs these IBM patents then you can't sue another Open Source project that IBM may rely on (or created themselves) for using your own patents without risking IBM pulling the rug out from under you.

Releasing these patents (if they are used) buys IBM an additional degree of legal protection/ammunition for the future.

Mark_MF-WN 01/11/05 02:55:28 AM EST

IBM is a public company. Anything they do, you can bet it's to increase profits (or drive down competitors' profits). I'll bet there's a really bright plan behind this -- no way it's just a "socialist attitude" or a "magnanimous move". Shareholders wouldn't stand for it.

tepples 01/11/05 02:52:46 AM EST

IBM's tactic: Apply for U.S. patents on methods used in software and then license them royalty-free for use in free software.

IBM's possible strategies behind the tactic:

* Encourage development of free software for IBM hardware and service platforms.
* Fund development of free software with royalties collected from publishers of proprietary software using the methods in question.
* Protect free software from patent suits by retaliating against those who use patents against IBM or against free software.

Nice job Stallings 01/11/05 02:33:55 AM EST

The relative positions of IBM and Microsoft now become increasingly distant. Now we know why Sun cozied up with the latter...it couldn't keep up with the former. Shame on you Sun, you should have collaborated with IBM on Java while you had the chance - this kind of moral high ground would have been yours, with all the business benefits that will undoubtedly accrue. Looks like Sun missed a trick.

bombshell indeed 01/11/05 02:31:11 AM EST

Definitely a banner day in the fight against restrictive patents. IBM has done the world a great service here.

Great move Blue 01/11/05 02:23:00 AM EST

I wonder how many extra servers IBM just sold to the open source community by making this commitment? You can do good as well as doing well, it seems. Win-win. Yay!

FOSS boss 01/11/05 02:16:33 AM EST

So Jim Stallings is now VP i/c intellectual property? He is "Mr Linux" at IBM. This is HUGE. The kernel group will go wild...Linus must be ecstatic.

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