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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.'

About 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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Reader Feedback: Page 2 of 2

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

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.

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.

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.

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.

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

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!

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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