IBM pledges no patent attacks against Linux

update Big Blue's book of patents won't be used to bludgeon the open-source software.

SAN FRANCISCO--IBM on Wednesday promised not to use its formidable collection of technology patents against Linux and challenged other companies to do the same, working to dispel one cloud that hangs over the open-source programming movement.

"IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves," said Nick Donofrio, senior vice president for technology and manufacturing, drawing applause in a speech at the LinuxWorld Conference and Expo.

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The tech giant's announcement could relieve some who fear the legal threat of the computing industry's largest patent arsenal. But it doesn't address the more tangible danger that Microsoft, an avowed Linux enemy, could attack.

Microsoft declined to comment for this story. But in April, the company's top lawyer said the software giant is willing "to work creatively" and to license its technology. However, patent licenses requiring royalty payments are prohibited for software governed by one major open-source license, the General Public License (GPL).

IBM's announcement is timely: Open Source Risk Management, a sort of an insurance company that sells legal protection for Linux users, said on Monday that IBM holds 60 patents that Linux potentially infringes. And the open-source software movement is much broader than just Linux.

In addition, a 2-year-old memo recently surfaced from a Hewlett-Packard executive who highlighted the potential that Microsoft could use patent infringement claims against Linux, and Microsoft wants to apply for 3,000 new patents this year as part of a newly aggressive patent plan. OSRM believes Microsoft holds 27 patents that Linux might infringe upon.

For years, IBM has secured more patents annually than any other computing company. And it's shown a willingness to use that arsenal: When the SCO Group sued IBM, alleging Big Blue broke its Unix contract by moving proprietary Unix technology to open-source Linux, IBM countersued with three patent infringement claims.

But when it comes to Linux, other companies should follow IBM's pledge. "I would challenge the information technology community to make a similar statement about enforcing their patents," Donofrio said. "And I challenge the Linux community to join together in establishing procedures that avoid infringement claims as we move forward and to resolve them promptly if they arise."

Getting other companies to rise to that challenge might be difficult, though. "The IBM statement doesn't solve any specific customer problem," Martin Fink, HP's vice president for Linux, said in a statement Wednesday. The statement highlighted HP's own program, launched last September, to protect customers from SCO's attack. "IBM has still never responded to HP's challenge to indemnify its customers against a real and material threat in the market."

Not far enough?
Bruce Perens, an open-source advocate who says he expects a patent attack to shut down the open-source movement, called for even more in a response Wednesday. He said he wanted a signed covenant in addition to a pledge, and defense help if open-source programmers or users are sued.

"I would like to hear from IBM, HP, etc., that when the suits come, they're going to stand by me" when Microsoft sues, "not stand on the sidelines. I'm going to be in court about 10 days if no knight in shining armor comes to rescue me. After 10 days, I'm going to have to sign a settlement."

An analyst said that IBM has varying policies when it comes to Linux and higher-level software.

"I think IBM wants to stay out of the patent wars, especially anything that reflects against the open-source movement," said Gartner analyst George Weiss.

"The kernel seems to be the easiest focal point for IBM," Weiss said. "But as you get higher up the layers of the stack, when you get to areas where IBM competes with its intellectual property, I don't know what concerns come up."

Seeking a balance
Though Donofrio said nothing to indicate IBM would back off from its own patent-hoarding plans and didn't promise not to attack other open-source software, he did say there needs to be a balance between intellectual property protection and collaboration.

"For IBM's part, we pledge to do everything in our power to strike that right balance," Donofrio said. Open collaboration has been an essential component in scientific progress, and employing it means companies can focus on where they make money and don't have to squander resources re-inventing the wheel, he said.

"The open movement forces people to rethink their intellectual property models, to rethink where they can offer the most value to their customers and what really creates competitive advantages," Donofrio said. "Over the next decade, you will see the open movement spread. The creation and value of intellectual property will be dramatically transformed."

Patent suits--regardless of their merit--typically cost between $2 million and $4 million to defend, experts say.

One Linux consortium has promised to help sidestep any patents, aligning with part of Donofrio's request. If patent issues arise, Linux programmers will create new software to avoid the trouble spots, said Stuart Cohen, chief executive of Open Source Development Labs, a Linux consortium that employs Linux leader Linus Torvalds.

"As we said in response to the SCO allegations, OSDL is prepared to work with the development community to remedy any offending code in Linux that infringes on the legitimate legal rights of others, and we extend that as well to any issues around patents," Cohen said this week.

Having it both ways
IBM has a mixed record when it comes to open-source software. Its support for Linux gave a profound commercial and technological boost to the operating system, and this week it opened the code for its Cloudscape database software. But other software, such as WebSphere e-commerce software and DB2 flagship database package, remain firmly proprietary.

The company has been a stronger advocate in recent years of what it calls the "open movement," which includes not just open-source software but also proprietary technology that conforms to open standards. Standards make it easier for customers to switch from one company's technology to another.

But cooperation can be powerful, Donofrio said, speaking in grand terms about Linux and what it has shown is possible.

"Linux is incredible," he said. "It is owned by no one and yet everyone at the same time. Thousands of programmers around the world are contributing to it today, contributing to it in a checks-and-balances manner that is impossible with proprietary software."

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