Bonum Certa Men Certa

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

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

Comments

Recent Techrights' Posts

All-Time Lows for Windows in Spain and Portugal
data which became publicly available less than 24 hours ago in statCounter
SLAPP Censorship - Part 64 Out of 200: Not Amused by Repeated Threats (to "Shut Down" My "Existence" While Mentioning My Wife Too)
it's about censorship
 
Linux Kernel Tainted by Software Patents That Make Linux Worse and the 'Linux' Foundation is Compiling Bribes to Enable This (Promotion of Monopolies and Tolerance of Software Patenting)
Why you need to reboot when a serious bug is found in Linux? "Licencing"...
IBM's Kyndryl Accounting Fraud Explained and More Recently the Insiders Talk About Mass Layoffs
Judging by how the media totally ignored 800+ layoffs at IBM's Confluent and 400+ layoffs at Red Hat a few weeks ago don't expect to hear anything about Kyndryl layoffs
Links 03/05/2026: Water Shortages Crises and Slop Fakes "Are Coming for Your Bank Account" (Slop-Enabled Fraud)
Links for the day
The Corrupt Lecture the Non-Corrupt - Part XI - EPO 'Products' to Cement Asian and American Monopolies
Only a fool would believe Lame Duck Campinos
Microsoft Windows Falls Below 9% in South Africa
As one can expect, GNU/Linux is measured as going up in France
Gemini Links 03/05/2026: The Black Side of the Web, LiveJournal, Chimarrão
Links for the day
A Month Since Mass Layoffs at Red Hat (400+ Engineers Laid Off), The Media Didn't Cover It
We are very concerned about the state of the media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 02, 2026
IRC logs for Saturday, May 02, 2026
Gemini Links 02/05/2026: Strange Psychosis and TUIs
Links for the day
Links 02/05/2026: Microsoft Has Begun Rebranding Vista 11 as 'XBox' (Because the Console is Dying), Slop Rejected by Oscars
Links for the day
IBM's CEO 10 Years Ago in IBM-Sponsored Forbes: "For those willing to embrace [blockchains], the future will indeed be bright."
How well did this prediction materialise?
RightsCon Cancellation as a Data Point in a World Gone Astray
RightsCon should not even be controversial
The NHS is Under Attack by Anthropic and Microsoft (or Their Lemmings That Infect the NHS)
They are kidding themselves if they seriously believe Web-facing source code repositories are the real threat to patients
cPanel is Not Linux, cPanel is Proprietary Software
It's fair to say I've used cPanel for 23 years
Links 02/05/2026: Gen Z is Turning Against Slop and OpenAI/Microsoft Rift Explained
Links for the day
Storage and Memory Prices Are Rising Not Because of High Demand (Production Can Match Demand), It's Partly Because of Price-Fixing (Same as Food Price Increases)
Sophisticated robberies are still robberies
Thousands of Layoffs at IBM, So IBM Pays Mainstream Media to Claim That IBM is Hiring (Paid Lies)
This is a story about the media failing us, not just IBM failing as a company
A Look at DataStax Bluewashing (IBM and Layoffs)
IBM is a place that many people leave or get pushed out of
Gemini Links 02/05/2026: Leaving Session, Alhena 5.5.7, and Slop Failing Customers
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 01, 2026
IRC logs for Friday, May 01, 2026
Links 01/05/2026: Microsoft 'Headcount' Decreasing, Apple Quietly Killing Vision Pro
Links for the day
Oracle's Debt Grew by Over 50 Billion Dollars in 6 Months
Larry Ellison spent a lot of money buying a lot of the corporate media
In Praise of Debian
30 hours ago we began an upgrade
What Linus (Torvalds, the Linux Dude) Meant by "Show Me the Code"
"Show Me the Code" is a common cultural reference
Yes, GNU/Linux Can Run on Playstation 5, But Don't Buy It, Learn From Sony's Past of Rootkit and PS3 Betrayal
Millions of Playstation 3 owners will never forget what Sony did to them
XBox Will Not Last Much Longer, XBox Chief Admits Problems
Microsoft's latest "results"
Dealing With Demagogue in Free Software
Don't spread their ideology and never participate in any of their projects
What May 1 Means to Us (and to Many Others)
To me, May 1 means something
Microsoft Lunduke is 'Pulling a Garrett' by Turning Technical and Legal Debate Over Rust Into a 'Trans Debate'
Don't fall for the demagogue
Links 01/05/2026: Regulatory Trouble for Apple, Now Even Mozilla Pushes Back Against Google
Links for the day
Microsoft "Buyout" Offer is Less Than One Year's Salary
So our assumption about this was correct
The Corrupt Lecture the Non-Corrupt - Part X - European Patent Office Managers Have Crossed Red Lines, According to Themselves
The girlfriend of the President of the European Patent Office (EPO) is trying to muzzle EPO critics
Techrights is Still Growing, Attacking Techrights Does Not Weaken the Community
Bullying us for 2+ years does not result in fear, it results in us feeling more emboldened and motivated
SLAPP Censorship - Part 63 Out of 200: Graveley as a Stripped-Down Version of Garrett in the Particulars of Claim (5RB Barrister Could Do This in One Minute)
Lazily and sloppily, it looks like the barrister took Garrett's claims and tweaked them a little (shortened) for Graveley
Lots of People Leave IBM, Today IBM Has About 1,000 Workers Fewer Than Yesterday
Confluent "last day" for 800+ people
Been a Very Busy Week
Next week, as we have no upgrades to prepare for, we should be able to publish at the usual pace of 20+ pages per day
In New Letter Sent to Chair and Heads of Delegation of the Administrative Council of the European Patent Organisation the Staff Union Explains How to End European Patent Office Strikes
If Campinos continues to behave as he does right now, the Council can show him the door
Links 01/05/2026: Poems and Continuous Privacy Policy
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 30, 2026
IRC logs for Thursday, April 30, 2026
Microsoft Debt Rose Almost $50 Billion Since We Moved to Debian
GAFAM has a new name for debt