IBM Pledges 500 Patents to Open Source

Following up on a promise last August to not use its vast patent portfolio against Linux users, IBM pledged in January to give 500 patents to open source developers. To some, this has come across as too little too late, as IBM still lobbies for software patent legislation in Europe, still receives more United States patents each year than any other company, and still makes oodles of money from licensing those patents to commercial developers. But IBM’s actions are laudable and significant for at least two reasons.

First, the gift lessens the possibility that open source software, Linux or otherwise, will be subject to litigation for patent infringement. Second, the grant signals a high-level acceptance of at least some of the concepts set forth in the latest legal scholarship espousing a framework for innovation that relies more on open access to technology than it does on traditional intellectual property law. Lawrence Lessig and his collegues at the Creative Commons (http://www.creativecommons.org) were very pleased with IBM’s announcement.

What exactly does it mean to “pledge 500 patents?” Remember that a patent is a negative right. Having a patent doesn’t give you the right to do anything — only to prevent someone else from doing it. (That’s why companies can make a business of merely litigating patents that they’ve purchased from defunct dot-coms.) So, IBM’s pledge amounts to a legally binding promise to not sue for patent infringement when any of the 500 listed patents are used according…

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