Subject: Re: Is Big Blue turning Red? IBM opens SW patents
From: "Karsten M. Self" <>
Date: Wed, 2 Feb 2005 15:53:18 -0800
Wed, 2 Feb 2005 15:53:18 -0800
on Fri, Jan 14, 2005 at 11:24:35AM +0100, Sergio Montoro Ten (
> Does anyone have an example of how the release of one of this patents will
> benefit a given product?
> I am working on a press article about IBM's patents opening from the point
> of view of the ISV.
> The more popular the product the better.

Here's my read on the IBM patent release, which I applaud *heartily*

It's a bit less significant of the value of the specific patents to Free
Software projects.  IBM isn't a credible patent infringement threat, for
the most part, and its granting its patents doesn't markedly reduce any
patent suit threat.

There is a possible (and beneficial) side benefit of encouraging other
firms and patentholders to make similar grants under similar terms.  Of
which, of course, Sun's subsequent patent grant most definitely isn't.

The real benefit though, is the extent to which the patents are
infringed by any party which might have a motivation to sue a Free
Software project, developer, vendor, or user, to the extent that such a
possible plaintiff isn't already covered under existing patent
agreements with IBM, as it's IBM who reserves the right to sue under its

Analyzing this further, there are really about four possible threats for
patent suits against Free Software:

  - Microsoft, in direct action.

  - Microsoft, in indirect action, such as its SCO (vs. IBM) and Wang
    (Netscape) proxy actions.

  - Third-party typical patent enforcement actions.  Think Fraunhofer
    (MP3), Pantone (CMYK), or Unisys (GIF).  These are relatively
    standard protective uses of patents to defend a product space.

  - "Patent mill" revenue licensing campaigns.  Attempts at commercial
    licensing of a patent portfolio by an organization with few or no
    holdings or economic activities other than patent licenses.

I don't see a direct Microsoft action as likely due to antitrust concers
-- if not in the US, than in the EU and WTO.  If Microsoft thought it
could engage in such action, it would have already, as it is now losing
billions of dollars in annual revenues to GNU/Linux in both server and
embedded markets, as well as other specified projects and technologies
(e.g.:  Samba, Apache, LAMP).  There are also very likely extensive
cross-licensing agreements extant between IBM and Microsoft which could
not be broached with impunity.  Both firms are largely at an impasse.

I do see the IBM grant as providing effective protections agaist the
other three threats.  Microsoft's proxy battles are typically waged by
spent shells of companies.  While they have few productive operations,
patent grants and enforcement along the lines suggested by IBM's actions
would blunt efforts significantly.  Third-party enforcements would be
far more sensitive to any actions on the part of a large patent grantee.
And rational patent-mill operations would find that if there are
electrons in a wire, the "makes,  uses , offers to sell, or sells" (35
USC 271(a)) would be sufficient hook to make a counterclaim.

All of this is restricted somewhat by antitrust concerns in patent
pools.  So it's not a perfect protection.  I suspect, though, it's
pretty solid.

Again:  thanks, IBM, a very positive move.


Karsten M. Self <>
 What Part of "Gestalt" don't you understand?
    Remember Alice? There's a song about Alice.
    - A. Guthrie

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