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Memo to IBM: Enough with Software Patents, Please

Posted in Europe, Free/Libre Software, IBM, Microsoft, OIN, Patents, Red Hat, Ubuntu at 2:52 pm by Dr. Roy Schestowitz

In summary, to IBM, please join the fight against intellectual monopolies

IBM has begun marketing its GNU/Linux solutions (running proprietary Lotus) as “Microsoft-free”, but not as “Free” because they are not. They try to ‘outMicrosoft’ Microsoft the Microsoft way.

IBM also builds its Maginot Line inside OIN, which is a software patents pool. It actively participates in this patents vs. patents cold war instead of just eliminating the weapon called software patents for the sake of everyone else (not just the large companies in possession of extensive portfolios). As we showed recently, even the man who drove IBM into Linux is still defending software patents.


IBM just won’t join the cause against software patents. Fortune, the same magazine that ushered Microsoft's patent attack on GNU/Linux with its seminal report, sports a new post that seems as though it’s almost ghostwritten by IBM et al.

Roger Parloff, who provoked opposers of SCO, has just published a very unhelpful thing. This informal article of his mostly echoes OIN’s chief Keith Bergelt [1, 2, 3], the successor of IBMer Jerry Rosenthal (first OIN leader).

The idea is to create a defensive patent shield or no-fly zone around Linux,” says Keith Bergelt, the chief executive officer of Open Invention Network, the consortium launching the site. The core members of that group, formed in 2005, are IBM, NEC, Novell (NOVL), Philips, Red Hat (RHT) and Sony.


Although some factions of the free- and open-source community are ideologically opposed to the whole notion of software patents — most notably and passionately Richard Stallman, the founder of the Free Software Foundation (which is a client of Linux-Defenders co-sponsor Software Freedom Law Center, which, in turn, supports the End Software Patents organization) — neither Bergelt nor OIN fall into that camp.

“We’re not anti-patent by any stretch of the imagination,” says Bergelt. “More patents is fine with me, as long as they’re high quality. Quality is the drum we beat.

The comment from Benjamin Henrion hits the nail on the head. It says:

It won’t work against patent trolls. Competitors of the Linux-based OSes can put some patents in a troll company, and this kind of patent pooling won’t work, because you cannot countersue.

And what Mr Bergelt is dangerous, since a patent troll with a high quality software patent is much more complicated to invalidate:

“More patents is fine with me, as long as they’re high quality.”

Software cannot be protected by patents, as you always need someone’s else patent to sell or distribute your product. As a software producer, you are always subject to blackmail.

If IBM wants to help more effectively (OIN is not so helpful), then it should empower people’s battle against software patents in the US and Europe, as opposed to giving credence to such patents. We wrote about this before. As this new article suggests, elimination of software patents is a high priority.

[T]he community has to help set a tone of ‘openness’ when working with companies and governments, and encourage these to adopt the same approach. In addition, the community must push for a stable legal system for software – and this includes standing firm against the idea of software patents.

Here is some text which was extracted from the comprehensive new report about Free software [PDF]:

The main threat to FLOSS currently in the area of legislation is software patentability. Software patents make innovation more rigid, reinforce dominant positions, and work against the four freedoms. In the United States, where the principle of software patentability was validated in 1998 by the software law, software patents have generated many costly procedures and trials, and the system actually turns out to be prejudicial to the software industry.

Europe Needs Help

There is a lot of work to be done in Europe. Digital Majority continues to identify new places where the Community patent rears its ugly head. The latest examples are the following four articles:

  1. Pharmaceutical Sector: EC Competition Rules ./. Patent System?
  2. Ministers give green light to Small Business Act
  3. The Small Business Act: a crucial element of Europe’s economic recovery
  4. Commissioner Fígel’: EU must unlock its ‘innovative capacity’

The Community patent is also seeing another window of opportunity, which is dangerous. Here are a couple of new articles about this:

1. EU seen edging towards deal on patents in 2009

A deal on a so-called community patent has long eluded the 27 European Union governments, due to spats over which languages to use and what sort of legal framework was needed.

2. French IP chief confident of European patent breakthrough in 2009, but we’ve heard it all before

As we all now know, the hoped for breakthrough under the French presidency did not happen. The reasons for this are basically those that I have already explained in previous blogs: problems over language and money for the national patent offices. However, Battistelli declared that, although there were still major difficulties to resolve in these two areas, as well as a number of specific technical problems to overcome with regard to the court, the glass was now 80% to 90% full. “I am optimistic that the forthcoming [Czech and Swedish] presidencies can build on this and that there will be good news in 2009,” he said.

One thing that can be tackled is the legitimacy of the reign at the EPO [PDF].

Why do you allow the European Patent Office to control the patent inflation and innovation of the EU, being a foreign institution to the EU?

A few months ago, Richard Stallman wrote that “staff at the European Patent Office went on strike accusing the organization of corruption: specifically, stretching the standards for patents in order to make more money.

“One of the ways that the EPO has done this is by issuing software patents in defiance of the treaty that set it up.”

Alison Brimelow

Patent Abusers

In absence of careful quality control and supervision of standards, the world might end up with another Rambus-like ambush, which leads to embargoes. This is neither healthy to development nor to consumers.

Rambus Inc. (RMBS: News ), which develops and licenses chip interface technologies and architectures used in digital electronics products, said Thursday that the U.S. International Trade Commission has agreed to its request and instituted a probe regarding alleged infringement of nine of the company’s patents by graphics chip maker NVIDIA Corp. (NVDA) and others whose products incorporate the disputed NVIDIA products.

The IEEE continues to mess things up by facilitating patents inside standards. Just in: “IEEE to Set up Patent Pools to Simplify Standards Adoption”

Would it not be better to deny patents in standards altogether, so as to accommodate free (as in Freedom) products? These two things — patents and Freedom — mix together like water and sand [1, 2] and Microsoft, for example, is exploiting this (along with the BSA).

It’s pointed out by the Microsoft-friendly press (Seattle Times) that Microsoft continues hogging and hoarding monopolies on algorithms.

Microsoft received 1,649 U.S. patents in 2007, the most by far of any software company, according to the Patents Scorecard produced by IEEE Spectrum and released this week.

Microsoft wants to fight using patents, but it does not target giants like IBM. It targets smaller companies like Red Hat, Mandriva, and Canonical. IBM is able to change its way if so it desires. It’s time to pick a side.

“Intellectual property is the next software.”

Nathan Myhrvold, Microsoft patent troll

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  1. G. Michaels said,

    December 8, 2008 at 8:36 pm


    Can you please provide proof that Microsoft has abused a patent?

    I’m not saying they haven’t, but since you included them in the “Patent abusers” section, I figure you have something more meaningful than just your claims of “hoarding”, which AFAIK is mostly for defensive purposes.

    And offtopic (plus to merit my scarlet letter), here’s a comment posted in reply to your nymshifter friend over on Slashdot. I thought it would be nice to share – I doubt he’s going to paste it into your IRC conversation tonight. Food for thought? Personally I think it’s a waste of time but maybe you can convince him to stay on the right track this time and stop disrupting other communities like you claim yours is… although with all these accounts maybe the temptation is too great. Who knows.

    Note: writer of this comment adds absolutely nothing but stalking and personal attacks against readers, as documented here.

  2. andre said,

    December 9, 2008 at 9:34 am


    About the SMB2 licensing: “Microsoft has patents that may cover your implementations of the protocols. Neither this notice nor Microsoft’s delivery of the documentation grants any licenses under those or any other Microsoft patents. However, the protocols may be covered by Microsoft’s Open Specification Promise (available here: http://www.microsoft.com/interop/osp). If you would prefer a written license, or if the protocols are not covered by the OSP, patent licenses are available by contacting protocol@microsoft.com.” While the company may not have abused its patents and may inform the public properly about potential problems that may arise if you may want to implement their interoperability portfolio, it clearly has abused the good will of European competition authorities with its insistance on trade secrets covering interface information. Many European competitors still feel ripped off by the American company and the inability of the authorities to enforce their sanctions against a rogue plaintiff that attempts to “outspent” foreign governments. There is a simple solution to the software patent mess and this is reform of substantive patent law including an interoperability priviledge as found 100% consensus in the CII directive.

  3. Roy Schestowitz said,

    December 9, 2008 at 9:38 am


    Microsoft has already been aiming at embargo (product removal) using their patents.

  4. Gentoo User said,

    December 9, 2008 at 1:10 pm


    “I doubt he’s going to paste it into your IRC conversation tonight. ”

    He did, but he called it an “M$ threat”. A threat.

    Oh, I forget. I’m not supposed to talk about Schestowitz friends, no matter how disruptive they are to other communities. He on the other hand, does not tolerate that and appends red text to my comments because I’m not posting from a Gentoo box. Right.

    Note: comment arrived from a witch hunter that does not even use GNU/Linux.

  5. andre said,

    December 9, 2008 at 7:27 pm


    I use Vista and all ordinary people tell me that I shouldn’t. My operating system is firefox anyway. Move the trash out, install your essential free software portfolio, OpenOffice, Firefox, Thunderbird, Vuze, VLC, notepad++, pidgin etc and so on… Sorry, I am just to lazy to install another operating system or bios because operating systems are obsolete anyway. Kill the patents and we don’t need the hypocrisy to use alternative installation sources.

  6. G. Michaels said,

    December 9, 2008 at 8:50 pm


    @Andre: Shortly, a few people will descend on here to tell you that you are:

    - Terminally retarded
    - Lying
    - Employed by Microsoft (or “M$”)
    - Not employed by Microsoft, but terminally retarded
    - Lying and retarded.
    - Employed by Microsoft, and lying.
    - Stalking people.
    - A Slashdot user.

    Don’t worry, this is just the way people here advocate free software. If you do ever decide to try Linux, make sure you use other venues, like the Ubuntu mailing lists, which are much friendlier than sites who claim to advocate but spend 99% of their time and bandwidth bashing.

    Note: writer of this comment adds absolutely nothing but stalking and personal attacks against readers, as documented here.

  7. G. Michaels said,

    December 9, 2008 at 8:51 pm


    @Roy, so the answer is no, then. Thanks.

    Note: writer of this comment adds absolutely nothing but stalking and personal attacks against readers, as documented here.

  8. G. Michaels said,

    December 9, 2008 at 8:53 pm


    He did, but he called it an “M$ threat”. A threat.

    And he was probably warned about it so he could post it in IRC.

    Wrap your brain around the mental processes of someone who calls that a threat. Go ahead, I dare you.

    Note: writer of this comment adds absolutely nothing but stalking and personal attacks against readers, as documented here.

  9. stevetheFLY said,

    December 10, 2008 at 3:38 am


    I can see the day when ALL of Roy’s visitors here will have red lines tagging their posts… Well, it’s on honor to be marked out like that on the site of a self-referencing smear-campaigner.

    Note: comment has been flagged for arriving from an incarnation of a known (eet), pseudonymous, forever-nymshifting, abusive Internet troll that posts from open proxies and relays around the world.

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