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.”
