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 to the terms of the pledge.
The conditions of the pledge are simple: You must publish your source code and license your software under one of the licenses approved by the Open Source Initiative as of January 11, 2005 (the date of the IBM announcement). The list of OSI-approved licenses is available at http://www.opensource.org/licenses
All in all, it’s a pretty good deal for IBM. They retain ownership of the patents, because they haven’t assigned them to the Open Source Initiative, to the Free Software Foundation, or to Linus Torvalds. IBM can still sue if someone doesn’t meet the conditions of the pledge, and the company can still license the patents for a fee to commercial entities that need the technology. Furthermore, IBM reserves the right to revoke the pledge for any person or entity who files a lawsuit against any open source software product on any intellectual property claim. This means that if a commercial company wishes to use one of the 500 IBM patents in a product that they license under the GPL, they cannot then assert a claim against any other open source product (for example, for copyright infringement, trademark infringement, or infringement of a patent that the commercial company owns). If the company does assert a claim, IBM can sue that company for infringing the IBM patent used in the GPL software that the company distributes.
Patents are always specific to one country. The IBM pledge is valid not only for the 500 U.S. patents, but for the foreign counterparts of those patents. (For a valuable invention, a company may spend hundreds of thousands of dollars securing patent protection in numerous countries.)
So what does this move mean in the larger context of open source software and software patents? Obtaining software patents remains a core IP strategy for every commercial software vendor; the patent system still needs an overhaul; and Linux and other prominent open source projects could still be threatened with costly patent infringement litigation. It’s true that not all of the 283 patents that Open Source Risk Management says Linux may infringe are included in IBM’s 500. And IBM’s action alone doesn’t prevent anyone else who owns a patent from suing a Linux user. But IBM’s pledge is akin to having a bulldog on a leash when facing potential enemies. How much less likely are even large industry players to sue Linux users for IP infringement when it appears that IBM would prefer they not do so?
IBM has already put its money on the table for Linux in numerous ways. Now IBM has granted open source developers liberal access to patents that cost $10,000,000 to obtain (just in the U.S.) and are worth an unknown amount in licensing revenue.
Cynics will say that open source developers would, for the most part, have used some of the IBM patents without even knowing it, and would have been none the worse off. But the future will likely demonstrate that IBM has helped us in spite of ourselves.
Nicholas Wells is an attorney who has been writing about Linux since 1993. You can reach him at