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IBM's Patent Pledge Ripples Open Sourcers

UPDATED: Reaction to IBM's pledge to free 500 of its software patents to the open source community has varied, ranging from praise to panning the software patent process itself. But what effect does this pledge really have on the developers who are writing code and the software world in general?

The Armonk, N.Y., IT giant announced Tuesday it was allowing the free use of 500 of its patents -- ranging from storage management to image processing to compression, encryption and access control -- for any developer, as long as they published the source code under one of the 50 certified open source licenses at the Open Source Initiative (OSI).

Officials said it was the company's first step in an effort to spur new ideas in the software community through collaboration and shared knowledge, and called on other intellectual property holders to join their "patent commons." Skeptics argued it was proof the patent process was broken.

Speculation abounds over IBM's ulterior motive for its philanthropic gesture. Ross Mayfield, CEO of Socialtext, said on his blog that the move is part of Big Blue's "broader strategy to commoditize their inputs, pool risk, leverage a lead in services and change the game."

There's something to this argument. More than half of Big Blue's revenues come from its global services division. For example, in its third quarter ending Sept. 30, 2004, global services were $11.4 billion, nearly half of the company's total revenues of $23.4 billion. IBM's software division, by way of comparison, brought in $3.6 billion.

The two are intertwined, however, through IBM's strategy to focus on servers, software and services for corporate customers.

Jeff Berkowitz, a patent attorney with Washington, D.C.-based Finnegan Henderson, said that while IBM isn't the first company to donate some of its patents to the open source community, the company's announcement earlier this week is notable for the size of its largesse. He finds it likely there's a business interest behind the pledge.

"No doubt there are business motives beyond being a nice player in the open source software movement, and I'm sure you're going to hear, likely, more of those kinds of theories on why they're doing what they're doing; it doesn't necessarily follow from somebody deciding not to assert its intellectual property under certain circumstances," Berkowitz said.

"Remember, they haven't pledged not to assert these patents at all, they've just pledged that they're not going to assert these patents to those that license software using a license that is consistent with an open source license."

Will the open patents create any fundamental change for open source programmers? Probably not, argues Russ Nelso, OSI vice president, who said that one of the intrinsic problems with patents is that in order to avoid running into one, the developer needs to be an expert in all of them.

He noticed one patent among IBM's crop that might have saved programmers some headache. Nelso said U.S. Patent 6324631, "Method and system for detecting and coalescing free areas during garbage collection," could be violated by any programming language, like Python or Squeak, that uses garbage collection -- where dynamically allocated storage is reclaimed during execution of the program -- in their applications.

"Basically, IBM has taken 500 needles out of the haystack," he said. "That's good. But how many more needles remain? And frankly, open source developers aren't looking for the needles. Nobody has sat on one yet, fortunately."

Martin Fink, HP's vice president of Linux, finds the whole announcement rather disingenuous on IBM's part. While he wants to give credit and applaud his company's rival for the gesture, he notes that IBM -- with its vested interest in the open source community -- would be violating the GNU General Public License (GPL) if it ever tried to assert any of its patents.

Section 7 of the GPL states that, "if you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."

He also notes that if IBM really wants to take a leadership role in the open source community, as the company seems to be signaling, it should look towards its own policies, namely IBM's refusal to indemnify its customers against SCO lawsuits. Currently, the SCO Group and IBM are embroiled in a $5 billion contract dispute.

"So there's a degree of smoke-and-mirrors that because they can't respond, or choose to not respond to direct indemnification, they're trying to skirt the issue by doing these things that seem like they're positioning themselves as having done a good thing for the industry," he said. "But they still haven't done the customer-centric thing."

Officials at the Open Source Development Labs (OSDL) have found three patents which will have a direct effect on open source programming. They're a key component to the Linux ecosystem and discredit the notion IBM is throwing out minor patents, said Bill Weinberg, an architecture specialist at the OSDL.

U.S. Patent 5185861, "Cache affinity scheduler," was originally patented through Sequent Computer Systems before it was transferred to IBM when it purchased the company. Weinberg said the patent is used for cache balancing in a Symmetric Multiprocessing (SMP) architecture with two or more processors.

U.S. Patent 5,247,681, "Dynamic link libraries system and method," is a core technology for dynamic link libraries, found in all modern operating systems, used to conserve memory during the program's execution.

U.S. Patent 5,617,568, "System and method for supporting file attributes on a distributed file system without native support therefor," is a system and method for providing native support in a network's distributed file system for an operating system's extended file attributes, such as between Linux and Windows.

Weinberg said that while some of the patents may seem to have little use today, he points out that one man's junk is another's treasure, and that patents awarded in years' past serve as building blocks for today's technology.

"IBM's portfolio is an impressive portfolio that holds these building blocks, and don't ever trivialize something as too basic to be relevant in a patent portfolio," he said. "All technology is built out of smaller units of technology. These three in particular are attributes of modern day operating systems that I think developers take for granted and don't even imagine they might be in somebody's patent portfolio."

Some aren't particularly enamored by IBM's decision to take some of its patents into the open source world. Steve Taylor, CTO of Elastic Workspace Technology, said patents are the only thing they have to act as a buffer between his small software company and larger predators.

Taylor, who said he has four patents wending their way through the patent process at the U.S. Patent and Trademark Office, said that, as the owner of a small software company, supporting open source software with patents is a mistake. While he understands IBM has its own business case for pledging some of its patents, it's not something he could contemplate.

"Our company has been working on its technology for more than seven years and it is truly a unique methodology and invention," he said. "I cannot open that up to the world or I will not get back the money that's been invested -- there's been millions of dollars invested in this and I would like to get back the money that's been invested."