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

Intercontinental Brigading - Part XXX - Breaking This Year’s Election Process With Bug Doors in Restricted Boot
Thankfully here in the UK we typically still vote with paper and pencil
Intercontinental Brigading - Part XXIX - Undermining US Election While Engaging in Lawfare in England (BBC) Against Publishers That Cover Anti-Election Violence
The elephant in the room is back doors in voting machines
 
Intercontinental Brigading - Part XXXI - Microsoft and Promoters of "Secure Boot" Are to Blame
the important thing is that the dictator and Microsoft can remotely control all computers
Links 03/11/2026: Science Around "Near-Death Experiences" and "Do Animals Grieve?"
Links for the day
Gemini Links 03/11/2026: Guitar, 3D-Printable Electric Spinning Wheel, Against Haven Social, and More
Links for the day
Intel Corporation Down Over 51% in One Month, the US Bailout Didn't Work
Is the slop industry [sic] next?
Microsoft European Development Centre (EDC) Next to be Culled?
No time for that anymore
Mass Layoffs at SUSE, Over 10% of Staff Gone
Ignore their excuses
When You're a Software Developer and They Tell You That Your Occupation is Dead or Dying in Order to Sell Dysfunctional Offerings Based on Hype (and Plagiarism)
Disbelief is a strength when companies borrow trillions of dollars to sell a dud and construct a pyramid scheme
Links 03/11/2026: Slop-Tied Debt is Becoming a Crisis (Lenders Panic), "Ukrainian Journalists Urge Global Media Not to Look Away From Russian Aggression"
Links for the day
Malaysia Seems to be Exploring Digital Independence With GNU/Linux and More
not too bad
Microsoft Windows is Crashing in Republic of South Korea
Like in Japan, they seem to be shutting the lid on decades of Microsoft-isms
Think Less, Aim for Less (When It Comes to Hardware)
An abundance of hardware being wasted on a pyramid scheme will become a cautionary tale one day
Gemini Links 03/11/2026: Stargazing, Linux-Powered Prism "Ambient Computer", and Abandoning Streaming Disservices
Links for the day
GNU/Linux Made Big Strides in Portugal This Year
Microsoft had many layoffs in Portugal in recent years
GNU/Linux in Argentina Now Measured at 8% "Market Share"
Argentina is known for exporting skilled footballers, not advanced technology, but it has a large population, which we can hope will dump Windows
Microsoft is Borrowing Loads of Money While Telling 60,000 Workers to Take the "Offer" and Leave, Microsoft Wants Bailouts From the Dictator
Vote in elections and also vote with your wallet
Microsoft and Spoilt Food
Some whistleblowers may be needed here
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 02, 2026
IRC logs for Monday, November 02, 2026
Links 02/11/2026: Bracing for US Election and New Zealand Has November 7 Election
Links for the day
Gemini Links 02/11/2026: Beginning With Gemini Protocol, Looking for CoCs, and Slop for Local Data
Links for the day
NDA-Compatible PIPs and RAs at IBM Red Hat
We welcome Red Hat whistleblowers who can share with us the NDA/s passed their way
The Tower of Babel
More is not better
When Large American "Tech" Companies Can No Longer Complete Payroll
In spite of several very large waves of Dell layoffs, which the media reported on, it seems like they are still experienceng payroll problems, maybe that's why money is being borrowed
GNU/Linux Rises in African's Largest Population
15% in Nigeria [...] A country with over 200 million people
The Register MS Has Just Published a Fake Article With "AI" 28 Times in the Page (Communist Party of China Entity Paid for That)
In IRC, someone has just pointed out that an article at The Register MS repeats Microsoft's lies about its financial situation
Windows Down to All-Time Low, Says statCounter, While Microsoft Tells 60,000 Workers They're No Longer Necessary
Microsoft must be feeling "salty" right now
A British Uphill Battle to Eliminate Microsoft and Its American Back Doors
There are places of work and homes where GNU/Linux is installed and regularly used, not as a mere hobby but as a hyper-productive, practical tool
Writing for Good
The Web has an abundance of junk
Technical Coverage of US Elections
When elections are done by computers and decided by computers it becomes a tech issue
By Killing the "Linux News Section" in Softpedia (the Most Popular Section, Based on Its Editor) Softpedia Killed Itself
Enjoy Ballmer
Linkspam in "It's FOSS" Today (and It's Not Even FOSS)
free-to-access ad for some dodgy companies and the URLs are 'tampered' for cashback
Links 02/11/2026: Slop Destroying Mathematics and "Democracy is Not on the Ballot" (in US)
Links for the day
Celebrating Photography, Celebrating Life, Celebrating Magnificent Humanity, Not Plagiarism Disservices
Any time we adopt or spread slop imagery we are participating in the problem
Year-Long Celebration Starts on Saturday
This coming Saturday we turn 20
Intercontinental Brigading - Part XXVIII - Microsoft Doesn't Want People to Speak About Microsoft-Controlled Restricted ('Secure') Boot, a Silent Injustice and Back Door/Kill Switch
Can we please stop treating this as normal or acceptable?
On Desktops/Laptops, Clownflare Sees Windows at Under 60% and GNU/Linux at 15% This Past Weekend
Impressive if accurate
Microsoft Lunduke is Slop
Microsoft Lunduke is just trying to stir up hatred
Intercontinental Brigading - Part XXVII - Shooting the Messengers (People Who Oppose Microsoft Back Doors), Even Across the Atlantic
Keep this in mind later this week when a dictator either discredits the voting or covertly tampers with the voting process
Microsoft Wants 60,000 Employees Gone (One Way or Another)
At IBM, 15% of staff got marked as candidates for removal; at Microsoft it's almost 30%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 01, 2026
IRC logs for Sunday, November 01, 2026
Jean-Claude Van Linus
Claude talking?
Gemini Links 01/11/2026: OpenBSD, Broken MicroHDMI, Nextcloud, and More
Links for the day
IBM Vapourware on a Budget (to Grab Bailouts From US Taxpayers)
Anderon is the sort of thing that makes IBMers uncomfortable
Links 01/11/2026: Digital Minimalism and "Palantir Cofounder Announces Cruel Plan to Breed Thousands of Lab Monkeys for Medical Experiments"
Links for the day
Microsoft Accenture in Trouble, Accenture’s Debt Skyrockets
Seeing a wave of adoption of Free software in Europe, it's not exactly shocking that "consultants" from Microsoft Accenture are no longer in demand
Microsoft Says Its "Goodwill" Value Has Been Declining for Years, But It Also Claimed That Doubled in One Year
Wall Street deserves far more criticism or scepticism (at the very least)
SkyChatz: From Nothing to #2 in IRC (in Less Than a Year)
Second only to Libera.Chat
Making Up Words or Inventing a Vocabulary
Or why Large Language Models are useless
Assange on What Lula Means to Free Press
Here in the UK we've also found our 'Lulas'
GNU/Linux is No Underdog (But There Are Attempts to Put It "To Sleep")
There's a moral imperative
Intercontinental Brigading - Part XXVI - The "Law and Order" Candidate Who Crushes Both Law and Order and Even Rejects Election Outcomes (Insurrection Follows)
A world without real technical security is a world void of democracy, justice, and human rights
Links 01/11/2026: Malaysian Media Perishing, France Belatedly Identifies Social Control Media as Weaponised Yellow Press
Links for the day
Gemini Links 01/11/2026: "Trick-or-Treating seems to be dead, at least in our neighborhood"; BaseFree Numerical System and Human Emacs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 31, 2026
IRC logs for Saturday, October 31, 2026