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IBM Gives FOSS Free Access to 500 Patents - Rethinks IP Management
Monday, January 10 2005 @ 11:56 PM EST

The New York Times is breaking the news. IBM is announcing that, after rethinking its IP management policies, it is giving the FOSS community free access to 500 of its patents:

"I.B.M. plans to announce today that it is making 500 of its software patents freely available to anyone working on open-source projects, like the popular Linux operating system, on which programmers collaborate and share code.

"The new model for I.B.M., analysts say, represents a shift away from the traditional corporate approach to protecting ownership of ideas through patents, copyrights, trademark and trade-secret laws. . . . The move comes after a lengthy internal review by I.B.M., the world's largest patent holder, of its strategy toward intellectual property. I.B.M. executives said the patent donation today would be the first of several such steps."

The patents, the article says, will be available to individuals as well as to small companies. They are [gasp] hoping to begin a "patent commons" which other companies will hopefully join. You can read their pledge for yourself [PDF]. Programmers who are not FOSS developers may wish to know in advance: there is the complete list of the patents in the pledge.

The patents fall into 14 categories, including those that manage electronic commerce, storage, image processing, data handling and Internet communications:

"I.B.M. will continue to hold the 500 patents. But it has pledged to seek no royalties from and to place no restrictions on companies, groups or individuals who use them in open-source projects, as defined by the Open Source Initiative, a nonprofit education and advocacy group. The group's definition involves a series of policies allowing for free redistribution, publication of the underlying source code and no restrictions on who uses the software or how it is used."

Oh my. They got it. Ta-Da!!

Larry Lessig is, naturally, quoted, speaking of a commons. "This is exciting," said Lawrence Lessig, a professor at Stanford Law School and founder of the school's Center for Internet and Society. "It is I.B.M. making good on its commitment to encourage a different kind of software development and recognizing the burden that patents can impose."

The BBC article has a reaction from OSDL's Stuart Cohen:

"Stuart Cohen, chief executive of US firm Open Source Development Labs, said the move could mean a change in the way companies deal with patents. 'I think other companies will follow suit,' he said."

I think so too, because they will have to. IBM has more patents than any of them. And if they have decided to carve out a protected zone for free and open source software, then it will happen. If the proprietary software world is enamored of patents and wishes to continue that system, at least for now, while making an exception for GNU/Linux software, I call that a positive move.

I know some would naturally argue that all software patents are bad. has taken that position and are critical of IBM's pledge.

I think software and patents need to get a divorce myself, but I also see that we are in a period of transition. Old business models are dying, and new ones are coming into being. And if there is a way to allow everyone to make money the way they want to, that may be, for now, as good as it gets. This is a creative response to the particular issue that GNU/Linux faces with patents, and I applaud it.

In honor of this moment, we have a new category of stories, Patents, so you can find only stories on that topic on Groklaw. I thought about doing it earlier, but it seemed like such a depressing topic. Now, the landscape just changed.

The Windows patent strategy is so over. 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. Thank you, IBM. Thank you.

Jonathan Krim at the Washington Post got this further piece:

"Beyond litigation, patents held by proprietary firms could be used to block open-source software's ability to interact with those software systems, rendering Linux less useful. . .

"Stuart Cohen, chief executive of Open Source Development Labs Inc., which employs Linux creator Linus Torvalds, said many of the patents IBM is donating appeared to be significant and would greatly assist development of open-source software.

"One patent, [James] Stallings said, makes it easier for systems to identify and link to modules of software in other systems."

Stallings is IBM's vice president of intellectual property and standards. And Stephen Shankland connected the dots in the area of standards:

"The company plans to grant royalty-free access to more patents in the future for open source use, a representative said on Monday. It also plans to release patents for use in open standards -- a move that could make it easier to embrace such standards within open source and proprietary software."

Remember when IBM filed its counterclaims against SCO? They didn't put on a blindfold and just grab a handful of patents to use for a counterclaim. They made a deliberate selection that would impact directly on SCO's products. Similarly here, there seems to have been some careful choosing. Reuters says this:

"'I think other companies will follow suit,' agreed Stuart Cohen, chief executive of Open Source Development Labs (OSDL) of Beaverton, Oregon, an industry consortium that promotes open source software. He believes 10 companies may come forward to offer a pool of 1,000 or more shared patents.

"The 500 patents cover areas such as storage management, simultaneous multiprocessing, image processing, database management, networking and e-commerce, Stallings said.

"Examples of what IBM will contribute include 39 patents in storage management and patents covering Dynamic Link Libraries (DLLs) used to invoke larger programs, the IBM executive said."

And Infoworld adds this:

"IBM will not assert the 500 named patents against software meeting the OSI's definition of open source -- although it reserves the right to withdraw the pledge and assert the patents against any party filing a lawsuit asserting patents or other intellectual property rights against open source software, according to its Web site.

"The 500 patents include U.S. Patent number 5,185,861, registered in 1993, which covers technology that helps microprocessors use their memory caches efficiently; and U.S. patent number 5,617,568, registered in 1997, for allowing non-Windows based systems to act as file servers for Windows-based clients, according to IBM Asia Pacific spokeswoman June Namioka. Other examples include patents related to handwriting recognition, she said."

I also received an email from Peter H. Salus, and with his permission, I will share it with you:

"There's little argument that over the past dozen years, the world has come to view things differently: free software is one aspect of this; globalization of trade is another; both have been profoundly influenced by access to the Internet and the Web, and the easy access to information they provide. Knowledge is, indeed, power. As the models change, people who are stuck in the older mode, like Gates . . . look increasingly like Pope Urban VIII and rms looks more like Galileo: despite 'common knowledge' the world was moving. IBM's freeing-up of patents is another step toward proliferating knowledge."

Here is the preamble to their patent pledge:

IBM Statement of Non-Assertion of Named Patents Against OSS

IBM is committed to promoting innovation for the benefit of our customers and for the overall growth and advancement of the information technology field. IBM takes many actions to promote innovation. Today, we are announcing a new innovation initiative. We are pledging the free use of 500 of our U.S. patents, as well as all counterparts of these patents issued in other countries, in the development, distribution, and use of open source software. We believe that the open source community has been at the forefront of innovation and we are taking this action to encourage additional innovation for open platforms.

The following is the text of our pledge. It is our intent that this pledge be legally binding and enforceable by any open source software developer, distributor, or user who uses one or more of the 500 listed U.S. patents and/or the counterparts of these patents issued in other countries.

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 programís source code without payment of fees or royalties. All licenses certified by and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge..

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.

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