IBM's Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS.
IBM has taken a strong action concerning its patent portfolo vis-a-vis Open Source Software ("OSS"):
"[...] IBM hereby commits not to assert any of the 500 U.S. patents listed below, 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, 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. [...]"
What follows is a list of 500 U.S. patent numbers and a very interesting 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 program’s 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. [...]"
This means that IBM not only waives the right to enforce a considerable list of patents against OSS but also threatens any third party daring to attack OSS with their respective own patent portfolio. I think such move is unprecedented in the entire history of patent practise. It underlines that IBM sees itself as one of the major players in the OSS game - they have built a lot of their business around it. IBM is part of the OSS community, and they act in conformity therewith - despite the fact that other guys who pretend to be the real representatives of OSS would like to disagree.
IBM's decision to make five hundred patents available for open source use is a welcome start to 2005. Despite Bill Gates' recent comparison of open source reformers with communists, the most compelling analysis of IBM's move is that it is entirely in the company's capitalistic interests so to do. It has decided that open source creates an environment in which it can be competitive: patents threaten open source. By making a public, irrevocable and unambiguous commitment to use its patents in a way that encourages open source development, IBM expects to reap concrete commercial advantages. This is not a philosophical or moral decision.
[...]"
And what do those anti-patent campaigners do? Do they appreciate IBM's move? As it might have been expected they are dismayed. Nosoftwarepatents.org shouts:
"[...] Recently IBM made an unsubstantial non-aggression promise with respect to Linux, and now they show off again. It's just diversionary tactics. Let's put this into perspective: We're talking about roughly 1% of IBM's worldwide patent portfolio. They file that number of patents in about a month's time.
In Europe, IBM is a driving force behind the extension of the scope of patentability with respect to software. If IBM wants to assume the role of a post-Christmas benefactor, they'd better stop their aggressive patent lobbying in the EU and their shameless squeezing of small and medium-sized companies with that IBM 'patent tax'. Let's take it from there. We can still talk about some kind of patent pittance after that. [...]"
"At the most basic level, this is obviously a good thing for OSS projects, because here are 500 patents OSS developers no longer have to worry about. IBM have indicated that this is only the beginning, and I hope that other companies will follow its lead.
It's also I think a clear recognition of the commercial benefits that IBM is seeing from Open Source software; and the particular difficulties that patents present for OSS.
So on that level it's a welcome piece of enlightened self-interest from IBM.
But it's unfortunate that software patents exist, that this sort of gracious permission is even necessary.
And it unfortunately does nothing to protect OSS and SMEs from patent attack from other companies out there, who may not share IBM's interests in promoting Open Source (including of course one rather large company from Redmond).
Ultimately this is at best only a sideshow. We should not get distracted from the real software patent issue, which is getting a directive which clearly confirms no software patents in Europe."
On the same line of arguing, the Leader quoted above concludes:
"[...] IBM needs to go further. As a member of EICTA, it remains publicly committed to a strong software patent regime in Europe: a strange position for a company simultaneously trying to negate the dangers of the American system. At the least, it needs to make its European position consistent with today's action -- and the time to do so is now, as momentum builds within the European Union for a complete rethink on the issue. [...]"
All this appears to be misguided. Why should the closed-source part of the software business be deprived of the patent protection for its computer-implemented inventions if the survival of OSS business concepts can be safeguarded by other less drastic means?
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
IBM has taken 
