Subject: IBM's open patent licensing policy
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Wed, 14 Jan 2004 14:32:49 -0800

 Wed, 14 Jan 2004 14:32:49 -0800
[Subject changed from "Open Source Definition : can it be made explicit
about non-copyright issues?"]

Alexander Terekhov wrote:
"[...] IBM has an open patent licensing policy under which we are 
 prepared to licence our patents on a non-discriminatory world-wide 
 basis. Moreover, IBM licences on a royalty-free basis the patents 
 that are necessarily implemented by the use or sale of our open 
 source contributions, a policy that has been endorsed by the Open 
 Source Initiative."
[http://europa.eu.int/comm/internal market/en/indprop/comp/ibm.pdf]


I am not aware of any formal endorsement of this policy by Open Source
Initiative. 

Should it be endorsed?

As a personal matter, I welcome IBM's policy as far as it goes.  But I
believe the open source community also needs royalty-free patent licenses to
IBM patents that are necessarily implemented by the use or sale of
***non-IBM*** open source contributions -- particularly those necessary to
implement industry standard software.  I would welcome IBM's commitment to
THAT goal as well.  This can perhaps be accomplished if IBM and other
companies actively support open-source-friendly patent policies for
standards organizations similar to that adopted by W3C, an effort that IBM
has conspicuously refused to make outside of W3C.  Without that, I suggest
that IBM's stated "open patent licensing policy" is only a partial solution
for open source.

There is also a current conflict in open source licensing circles about how
IBM and other companies use their patents for defensive purposes, with
important implications for open source software.  [See thread " termination
with unrelated trigger considered harmful" on both
license-discuss@opensource.org and license@apache.org.]  I am not aware that
OSI has taken an official position on this or similar patent issues, and so
nobody should read into the above quotation any implication that OSI
endorses other of IBM's patent policies that affect open source.  

Simply because IBM included the above statement in its position paper on
Europe's debate about "The Patentability of Computer-Implemented
Inventions," you should not assume that OSI endorses IBM's overall position
on software patents in Europe (see the above URL).  In fact, as near as I
can determine, there isn't a lot of enthusiasm in the open source community
for software patents anywhere in the world.

/Larry Rosen 

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