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IBM’s Missed Opportunity to Help Free Software

Posted in IBM, OIN, Patents at 4:44 am by Dr. Roy Schestowitz

When silence is consent

IBM Netvista

Summary: It’s high time that people asked IBM to abolish software patents

IBM and its embodiment in other organisations like the Linux Foundation and OIN are no opponents of software patents, so it’s always important to challenge IBM to 'pull a Bilski' on such patents. Without pressure, nothing will ever change.

IBM does not attack Free software using its patents, but it does use these as a marketing tool (indemnification and other perceived protections). This puts IBM in a position of considerable advantage and may not help Free software in the long term. Big Blue wants to keep the cake and eat it too.

“IBM does not attack Free software using its patents, but it does use these as a marketing tool (indemnification and other perceived protections).”IBM likes the Eclipse licence and while it subscribes a lot to Linux, it more of less distances itself from GNU, and particularly its philosophy. While IBM did offer its endorsement to the GPLv3, it did not oppose software patents in Europe and instead opted for some sort of a waffle. See its submission to the EBoA here (direct link requires session ID).

The reason for bringing this up is the possible appointment of an IBM person who might soon become the director of the USPTO. He could make more of farce of the USPTO, whose heads usually come from software patent proponents and/or the large patent holders (embracing maximal monopoly). Perhaps by contrast, the former USPTO Commissioner Bruce Lehman was recently quoted as saying that “The age of IP rights being at the forefront of American trade policy is over.”

The appointment of a person from IBM is far from final because there are other candidates, as IAM Magazine reports:

Three names have been in the frame for the job up to now: Todd Dickinson, David Kappos and James Pooley.

To say more about IBM, here is a new finding that came via Digital Majority.

Patent Thickets and Patent Trolls:


[T]his new definition would now include many corporations, such as IBM, which collect patents, not for manufacturing purposes, but to use them as a shield against patent infringement lawsuits. (Coincidentally, two commentators to my prior post on incremental invention mentioned IBM’s practice of hoarding patents.) In sum, IBM, which has long been one of the largest owners of patents in the country, uses patents defensively. Its policy has been one of “mutually assured destruction,” i.e., if someone threatens to sue it for patent infringement, then it promises that it can find a patent in its massive patent portfolio with which to countersue for infringement. This policy has worked marvelously well for IBM, which has mostly avoided patent infringement lawsuits and has been left free to devote its time, energy and money to developing new products and services that it offers in the marketplace. But IBM’s policy of hoarding patents is certainly “patent troll”-like behavior — patents are being used solely for litigation purposes and not for development of actual products sold in the marketplace.

If IBM cares about Free(dom) software, then it will put software patents to rest. Limiting their scope is not enough because they are inherently incompatible with software freedom, where code can be redistributed.

“IBM is proud of its patent portfolio, and the fact that they produce patents at a rate of 10 a day. With such an extensive arsenal of patents, backed by unlimited legal funds – what chances are left for the VC backed company? This is like the US going to war against Micronesia.” —Daniel Cohen, Gemini Israel Funds

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  1. Contrarian said,

    May 11, 2009 at 6:24 am


    What makes you think IBM doesn’t do harm to free software with patents? It has a highly profitable business cross-licensing them – designed by the same guy who went on to switch Microsoft from using patents for-defense to for-profit – and it chills the market for commercial use of free software just the same way Microsoft does. The fact that Microsoft is more clumsy in its actions and more honest in its intent doesn’t make IBM – cunning and opaque – any better.

    And I love your implication that IBM might want to see software patents abolished, if we only asked! How ridiculous! They love them!

    Roy Schestowitz Reply:

    What makes you think IBM doesn’t do harm to free software with patents?

    Where did I suggest this?

    I wrote:

    “IBM does not attack Free software using its patents, but it does use these as a marketing tool (indemnification and other perceived protections).”

    And I love your implication that IBM might want to see software patents abolished, if we only asked! How ridiculous! They love them!

    Of course. If I raise the issue in Sutor’s blog, he deletes the comments.

  2. David L. Craig said,

    May 13, 2009 at 8:08 am


    IBM is a for-profit entity. It is far more focused on their historical method of generating them: selling products and services to organizations of all sizes that make big differences in those organizations’ bottom lines. Their success speaks for itself. They have understood all the important considerations of this focus for a very long time, including product liability, quality, and innovation. Patents are the fallout of R&D, obtained primarily as a defensive measure. As the government changed patent rules, IBM adapted in response. Now the rules seem to be swinging back again. At this time there are pros and cons that every software manufactuer needs to balance as they plan for the future of software patents. Portfolio disarmanent will be as simple as nuclear disarmanent. I rate IBM’s goodwill much higher than any of its peers.

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