Patents are the secret to open-source success? Really?!?

IBM argues that patents have fueled open source's success, but its own history belies this claim.

Open-source proponents have traditionally been anti-patent, and for good reason. Patents are tough to track and can hinder the very innovation they're designed to encourage. Oddly, therefore, IBM argues that patents have fueled the growth of open source.

Can this be right, or is IBM simply serving the two masters that fuel its software strategy: a mix of open source and proprietary software?

Patents have the potential to become a minefield for innovators. Companies like ex-Microsoft executive Nathan Myhrvold's Intellectual Ventures (IV) arguably make things worse by turning patent licensing into a standalone business, as Timothy Lee writes in a blog post:

The fundamental question we should be asking about [IV's] business strategy is how it benefits anyone other than [founder Nathan] Myhrvold and the patent bar. Remember that the standard policy argument for patents is that they incentivize beneficial research and development. Yet IV's business model is based on the opposite premise: produce no innovative products, spend minimal amounts on research and development, and make a profit by compelling firms that are producing products and investing in R&D to pay up.

Not only does this enrich Myhrvold at everyone else's expense, but it also reduces the incentive to innovate, because anyone who produces an innovative product is forced to share his profits with Intellectual Ventures. Patents are supposed to make innovation more profitable. Myhrvold is using the patent system in a way that does just the opposite.

Despite such abuses of the system, have patents been kind to open source? That's a hard argument to credibly make, but it's precisely the argument IBM makes in its amicus brief for the Bilski case (PDF).

Bilski, a U.S. federal circuit court decision now before the Supreme Court, strikes down business method patents and also seriously threatens the validity of software patents, and hence seems a curious place for IBM to state its pro-patent and pro-open-source case.

IBM argues that "patent protection has promoted the free sharing of source code...which has fueled the explosive growth of open source software development."

Here's the full context:

Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms--which has fueled the explosive growth of open source software development.

Really?

IBM's point obscures the reality of open-source development. as TechDirt points out:

The situations where a patent makes a developer more comfortable showing source code are clearly cases of proprietary software, where the developer/patent holder is worried about the software being copied. With open source software, there's no such "worry" because that's actually a feature of the system.

Patents may not be quite the Great Satan that open-source advocates sometimes suggest, but they haven't been the foundation upon which open source has been built, either. It's unclear why IBM makes this point, as few companies could claim to understand and advance open source as much as IBM.

It's particularly odd in light of the company's own statement of non-assertion of patents pledge (PDF) against open-source developers. If patents are helpful to open-source developers, why bother giving assurance that IBM won't litigate against them?

IBM makes over $1 billion each year with its patent portfolio, but this doesn't explain why it would make such a curious argument regarding open source. Anyone have ideas as to a plausible explanation?


Follow me on Twitter @mjasay.

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About the author

    Matt Asay is chief operating officer at Canonical, the company behind the Ubuntu Linux operating system. Prior to Canonical, Matt was general manager of the Americas division and vice president of business development at Alfresco, an open-source applications company. Matt brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. He is a member of the CNET Blog Network and is not an employee of CNET. You can follow Matt on Twitter @mjasay.

     

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