EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.07.10

IBM Will Never be the Same After Taking Software Patents Out of Its Holster

Posted in Europe, GNU/Linux, IBM, Microsoft, Novell, OpenSUSE, Red Hat, SLES/SLED, Ubuntu at 8:37 pm by Dr. Roy Schestowitz

Watch IBM Slink Away

Shy dog

Summary: IBM runs away from bad publicity after making a poor decision and sending a Free software-hostile nastygram

JUST as we predicted, IBM does the usual PR thing and backtracks when the public backlash becomes too great. It happens every time IBM obtains or applies for patents that are so trivial that they are insults to the patent system and to the intelligence of everyone around.

This post relates to a development that we covered in (chronologically sorted):

  1. Microsoft Proxy Attack on GNU/Linux Continues With TurboHercules
  2. Eye on Security: Windows Malware, Emergency Patches, and BeyondTrust’s CEO from Microsoft
  3. IBM Uses Software Patents Aggressively
  4. IBM’s Day of Shame

IBM has lost a lot of credibility, even if the provocation came from a proxy of Microsoft (several sources suspect so, based on information they cannot share).

IBM partners from Red Hat and Canonical are trying to defend IBM’s actions. Some are in denial, including Matt Asay from Canonical (not direct link because of the comments). IBM may have a promise for developers and not for companies. In any event, IBM shows its affair with software patents, which is not a good sign. The president of the FFII hypothetically quotes “Ubuntu’s Matt Asay” as saying: “TurboHercules is violating IBM’s patents, shame on it” (we ought to remind readers that Asay has been flirting a lot recently with Gartner‘s de facto software patents lobbyist [1, 2, 3, 4, 5]).

He also asks, “Ubuntu/Canonical is now pro swpat [software patents]?”

Pieter Hintjens, FFII’s former president, also replies to Matt Asay angrily by writing: “Matt, shame on you. Every single open source project, including all of mine, infringe on at least one IBM patent somewhere. IBM hold 50% of the world’s software patents. You know this. How can you defend IBM’s use of its patent portfolio (knowing as you should that IBM finagled software into patent law both in the USA and in Europe) against an open source project, indeed against any software project?

“Has Canonical’s position changed since Mark spoke at Eupaco-2 about the need for freedom for the new economy? Are you doing some deal with IBM that makes this particular monopoly of ideas OK?”
      –Pieter Hintjens
Software patents are evil, because they allow the powerful and rich to exert undue control over the small and the weak in the marketplace. Your company exists thanks to the small and the weak. IBM has never been a friend of open source, always just a “so far, so good”.

Has Canonical’s position changed since Mark spoke at Eupaco-2 about the need for freedom for the new economy? Are you doing some deal with IBM that makes this particular monopoly of ideas OK?

Shame on you, Matt, shame.”

The short answer is basically “yes”. Canonical and IBM collaborate on at least one project. As one person writes in response to Hintjens, “Are you inferring that Matt is using this Blog to help the company where he is the COO?”

Matt Aslett from the 451 Group writes: “The OIN promise actually covers open source software “Distributed with, or for use with, the Linux Kernel (or is the Linux Kernel)” and so is pretty broad. The full list, here http://www.openinventionnetwork.com/pat_linuxdefpop.html, includes MySQL and OpenOffice.org, for example (although no Hercules, so the wider point still stands).

That’s not of much use if IBM is attacking. OIN (Open Invention Network) is essentially IBM and some companies that huddle around it after they have wasted money filing for software patents and putting them in a pool (what a wasteful process!). Here is a new OIN joiner:

Open Invention Network (OIN), the company formed to enable and protect Linux, today extended the Linux ecosystem with the signing of Ooma as a licensee. By becoming a licensee, Ooma has joined the growing list of companies that recognize the importance of participating in a substantial community of Linux supporters and leveraging the Open Invention Network to further spur open source innovation.

OIN is in favour of what it calls “high-quality” software patents, based on its CEO. It’s a bit like Peer-to-Patent, which does not genuinely help the ending of software patents.

IBM obviously broke its promise and IBM is in denial.

The open-source software community is up in arms over claims that IBM has broken a promise by asserting its patents against an open-source project. IBM denies that it has done so.

This does not agree with reports [1, 2, 3] that the source of the backlash (Mueller) brags about with a summary of resultant posts and articles, such as:

Australia’s iTWire writes that IBM has broken its 2005 promise. In the discussion part below the article, a reader (Richard Chapman) gives a vivid description of the situation: “Having IBM at your side in the land of Open Source is sort of like having a large carnivore as a pet. They may play and cuddle with you but you never know if or when they will revert to their natural ways and have you for lunch.”

Here is the original. ECIS is tied to IBM, so it is making the following claims (an assertion that’s likely true, but does not excuse IBM):

Thomas Vinje, the founder of the European Committee for Interoperable Systems (ECIS), which ranks IBM among its members, said that “Microsoft lies behind the antitrust complaints against IBM.” Mueller can in turn be linked to Microsoft, he said, because he joined forces with Microsoft to oppose the Oracle-Sun deal, which was approved after an in-depth investigation by the Commission that ended in December. Vinje acted for Oracle in that case.

We have attempted to see what led IBM to the nasygram and the following excellent article from LWN answers many of the questions.

The problem is that systems like z/OS and z/VM are proprietary software, subject to the usual obnoxiousness. In particular, IBM’s licensing does not allow these systems to be run on anything but IBM’s hardware. So when TurboHercules tried to get IBM to license its operating system to run on Hercules-based boxes, IBM refused. TurboHercules responded by filing a complaint with the European Commission alleging antitrust violations. According to TurboHercules, IBM’s licensing restrictions amount to an illegal tying of products.

One need not agree with IBM’s position to understand it. IBM understands well the power of commoditizing its competitors’ proprietary technology – that’s what its support for Linux is all about, in the end. Emulated mainframes running on generic Linux or Windows boxes can only look like an attempt to commoditize one of IBM’s cash cows. The fact that this product requires running IBM’s proprietary software gives the company a lever with which to fight back. Whether one feels that refusing to license that software in this situation is a proper action or not, one should agree that it’s unsurprising that IBM exercised that option.

TurboHercules evidently sent IBM a letter questioning whether IBM actually owned any useful intellectual property in this area. IBM responded with a letter listing 175 patents owned or applied for, all of which are said to apply to IBM’s mainframe architectures. Two of these patents, it turns out, are on the list of patents which IBM explicitly pledged not to assert against the free software community.

This is the best explanation we’ve found so far. TurboHercules is probably being dishonest, so we have ignored their attempts to contact us (they send PR people). Even if IBM is being provoked and teased by a company that’s possibly linked to Microsoft (even before officially joining the Microsoft lobby), IBM’s response is not acceptable. It even gave Microsoft MVPs like Miguel de Icaza ammunition against IBM and Eruaran says that “Miguel De Icaza has got some nerve tweeting about IBM’s behaviour given his own activities.” Yes, he does a lot worse himself [1, 2], and knowingly so [1, 2, 3]. Check out the following new post that’s titled “Microsoft and Patents”:

Microsoft initially started this patent crusade about 3 years ago, and after the initial wave of accusations the Redmond giant seemed to slumber. All was well for a while. Sure, we all felt as though Novell, Xandros, and Linspire had sold their souls to Satan, but we didn’t really care. There were no real effects of the deals seen. Microsoft claimed that 235 patents had been violated, but to date they have yet to say who violated those patents and in what way. To me, this seems like a massive FUD campaign.

[...]

Rather recently in the Microsoft crusade against Linux, Microsoft approached Amazon. The Kindle’s embedded OS is Linux based, OH NOES! This leaves a striking pattern. As soon as you start making money with Linux software, and Microsoft doesn’t get your money they attack you in some way. Amazon also paid Microsoft some money during the patent exchange, which raises my suspicions… If this kind of treatment continues, I hope that someone will have the ire to stand against Microsoft at some point, and demand that the accusations and the specifics of the violations and violators be made public. How can anyone comply if the information isn’t made public?

Amazon is indeed paying Microsoft for GNU/Linux [1, 2, 3, 4] and IBM cross-licenses with Microsoft. That’s why they can’t quite sue each other. As far as Novell is concerned, Microsoft has made it clear that those who are making money from OpenSUSE are at risk of being sued and Microsoft already ‘taxes’ SLED and SLED.

“As far as Novell is concerned, Microsoft has made it clear that those who are making money from OpenSUSE are at risk of being sued and Microsoft already ‘taxes’ SLED and SLED.”Responding to the post above, Penguiniator writes: “Microsoft is not looking for compliance. The Linux kernel developers have made it clear to Microsoft that they will remove any infringing code if it is pointed out to them. Microsoft cannot make money on code that does not infringe.”

Going years back, we have already pressured IBM (and sent mail to the relevant people) asking them to take advantage of In Re Bilski and put an end to software patents (the current head of the USPTO is from IBM, which wields a lot of power in the patent system). IBM bloggers deleted comments on the subject and never replied. It’s what Pieter Hintjens called the “conspiracy of silence”, topped with censorship too (deleted comments).

According to Professor Eben Moglen’s essay for a new Red Hat Web site, the Bilski case and the end of gene patents are a stepping stone towards ending software patents.

In reaching his legal conclusions, Judge Sweet relied significantly on the recent opinion of the Court of Appeals for the Federal Circuit, which has primary responsibility for interpreting the nation’s patent law, In re Bilski, 535 F.3d 943 (2008), now pending in the Supreme Court. Bilski, as readers here will know, raises issues concerning the patentability of business methods and computer software, on essentially the same basic ground: that, as the Supreme Court has said, “phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U.S. 63, 67 (1972). Judge Sweet’s opinion may be said to raise the stakes on Bilski slightly, but the parts of the Federal Circuit opinion on which Judge Sweet relies are not about the “specialized machine or transformation of matter” test adopted by the Federal Circuit to distinguish patentable from unpatentable inventions involving computer software and methods of doing business. Judge Sweet followed the Federal Circuit closely in its expression of the settled law of patent scope, making it more unlikely that the Federal Circuit, which will hear the inevitable appeal from Judge Sweet’s judgment, will be inclined to disturb the conclusion.

The FFII sometimes accuses IBM of stopping short of elimination of software patents. IBM wants to remove business method patents but to keep software patents in tact. The FFII’s president also says that the “European Commission [is] trying to promote High Quality software patents with the PATQUAL study.” That’s what IBM has been trying to do with OIN. IBM is part of the problem because it not only encouraged patenting of software; here in Europe, IBM is said to be part of the movement that helps legalise software patents.

Even if IBM retracts the threat (as some sources already suggest), it cannot be trusted again. And until IBM makes it clear that it had no software patents in its agenda, IBM deserves to be seen as a fake friend of Free software. It was already called just that even months ago, primarily by other sites that seek to end software patents. Yes, to end them, not to blend with them.

“Software patents are a huge potential threat to the ability of people to work together on open source. Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat.”

Linus Torvalds

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. Yuhong Bao said,

    April 7, 2010 at 8:46 pm

    Gravatar

    Yea, funny that it has happened, since a long time ago I asked whether to trust IBM’s patent promises over MS’s.

What Else is New


  1. Links 23/10/2014: New *buntu, Benchmarks

    Links for the day



  2. Links 22/10/2014: Chromebooks Surge, NSA Android Endorsement

    Links for the day



  3. Links 21/10/2014: Debian Fork Debate, New GNU IceCat

    Links for the day



  4. Criminal Microsoft is Censoring the Web and Breaks Laws to Do So; the Web Should Censor (Remove) Microsoft

    Microsoft is still breaking the Internet using completely bogus takedown requests (an abuse of DMCA) and why Microsoft Windows, which contains weaponised back doors (shared with the NSA), should be banned from the Internet, not just from the Web



  5. Microsoft 'Loving' GNU/Linux and Other Corporate Media Fiction

    Microsoft has bullied or cleverly bribed enough technology-centric media sites to have them characterise Microsoft as a friend of Free/Open Source software (FOSS) that also "loves Linux"



  6. India May be Taking Bill Gates to Court for Misusing His So-called 'Charity' to Conduct Clinical Trials Without Consent on Behalf of Companies He Invests in

    Bill Gates may finally be pulled into the courtroom again, having been identified for large-scale abuses that he commits in the name of profit (not "charity")



  7. The Problems With Legal Workarounds, Patent Scope, and Expansion of Patent Trolls to the East

    Patent trolls are in the news again and it's rather important, albeit for various different reasons, more relevant than the ones covered here in the past



  8. Links 20/10/2014: Cloudera and Red Hat, Debian 7.7, and Vivid Vervet

    Links for the day



  9. Links 20/10/2014: 10 Years Since First Ubuntu Release

    Links for the day



  10. How Patent Lawyers Analyze Alice v. CLS Bank

    Breaking down a patent lawyer's analysis of a Supreme Court's decision that seemingly invalidated hundreds of thousands of software patents



  11. Is It Google's Turn to Head the USPTO Corporation?

    The industry-led USPTO continues to be coordinated by some of its biggest clients, despite issues associated with conflicting interests



  12. The EPO's Public Relations Disaster Amid Distrust From Within (and EPO Communications Chief Leaves): Part VII

    Amid unrest and suspicion of misconduct in the EPO's management (ongoing for months if not years), Transparency International steps in, but the EPO's management completely ignores Transparency International, refusing to collaborate; the PR chief of the EPO is apparently being pushed out in the mean time



  13. Links 18/10/2014: Debian Plans for Init Systems, Tails 1.2

    Links for the day



  14. Links 18/10/2014: New ELive, Android Expansion

    Links for the day



  15. Another Fresh Blow to Software Patents (and With Them Patent Trolls)

    Another new development shows that more burden of proof is to be put on the litigant, thus discouraging the most infamous serial patent aggressors and reducing the incentive to settle with a payment out of court



  16. Links 16/10/2014: New Android, SSL 3.0 Flaw

    Links for the day



  17. How the Corporate Press Deceives and Sells Microsoft Agenda

    Various new examples of media propaganda that distorts or makes up the facts (bias/lies by omission/selection) and where this is all coming from



  18. Vista 10 is Still Vapourware, But We Already Know It Will Increase Surveillance on Its Users and Contain Malicious Back Doors

    The villainous company which makes insecure-by-design operating systems will continue to do so, but in the mean time the corporate press covers only bugs in FOSS, not back doors in proprietary software



  19. Links 15/10/2014: KDE Plasma 5.1 is Out, GOG Reaches 100-Title Mark

    Links for the day



  20. With .NET Foundation Affiliation Xamarin is Another Step Closer to Being Absorbed by Microsoft

    Xamarin is not even trying to pretend that separation exists between Microsoft and its work; yet another collaboration is announced



  21. The EPO's Protection Triangle of Battistelli, Kongstad, and Topić: Part VI

    Jesper Kongstad, Benoît Battistelli, and Zeljko Topić are uncomfortably close personally and professionally, so suspicions arise that nepotism and protectionism play a negative role that negatively affects the European public



  22. Corporate Media Confirms the Demise of Software Patents in the United States; Will India and Europe Follow?

    It has become increasingly official that software patents are being weakened in the United States' USPTO as well as the courts; will software leaders such as India and Europe stop trying to imitate the old USPTO?



  23. Links 14/10/2014: CAINE 6, New RHEL, Dronecode

    Links for the day



  24. Microsoft's Disdain for Women Steals the Show at a Women's Event

    Steve Ballmer's successor, Satya Nadella, is still too tactless to lie to the audience, having been given --through subversive means -- a platform at a conference that should have shunned Microsoft, a famously misogynistic company



  25. SCOTUS May Soon Put an End to the 'Copyrights on APIs' Question While Proprietary Giants Continue to Harass Android/Linux in Every Way Conceivable

    Google takes its fight over API freedom to the Supreme Court in the Unites States and it also takes that longstanding patent harassment from the Microsoft- and Apple-backed troll (Rockstar) out of East Texas



  26. Patent Lawsuits Almost Halved After SCOTUS Ruling on 'Abstract' Software Patents

    The barrier for acceptance of software patent applications is raised in the United States and patent lawsuits, many of which involve software these days, are down very sharply, based on new figures from Lex Machina



  27. Links 13/10/2014: ChromeOS and EXT, Debian Resists Systemd Domination

    Links for the day



  28. Links 12/10/2014: Blackphone Tablet, Sony's Firefox OS Port

    Links for the day



  29. Links 9/10/2014: Free Software in Germany, Lenovo Tablets With Android

    Links for the day



  30. Links 8/10/2014: A Lot of Linux+AMD News, New ROSA Desktop Is Out

    Links for the day


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts