August 4, 2004 1:24 PM PDT

IBM pledges no patent attacks against Linux

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."

7 comments

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Hello - IBM supports Linux
Why would IBM seek infringement against Linux if it is a staunch supporter? Thisarticle has very little news value. Also doesn't IBM make money off its patents - if its IP was threatened Donofio said IBM would protect themselves.
"IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves," There is not threat here - IBM makes money off of Linux and associated services.

To be expected from the freakfest at Linux World. who do they go to when you have built a solution that is two kernals old - nightmare.
Who do they go to for free support?
Posted by (2 comments )
Reply Link Flag
LOL MS Patents
"OSRM believes Microsoft holds 27 patents that Linux might infringe upon"

They (MS) would likely only act when they are finished being sued for numerous patent infringments themselves. Which will be a long time.

Many are using Windows day-to-day without worrying about lawsuits brought on by using a software product that infringes on many patents - they just let MS slug it out (constantly) in court or out of it maybe with a few hundred mil. You see it is easier to buy than to invent and/or innovate - it's the MS business plan it seems. Maybe MS is going to apply for 3000 patents this year (likely including sunshine I'm sure!) but just 'cause you apply doesn't mean you have s**t. Just more hot air from the dying dragon! ha
Posted by dirk128 (31 comments )
Reply Link Flag
MS business plan, it seems
While it is true that Microsoft will initially buy a product to get into a new market, you are wrong that they do not innovate. I believe their moto is "embrace and extend". Microsoft has one of the largest R&D funded efforts both within their own company and through higher education. Microsoft also buys rights to use patents, as with Sun Microsystems deal.
It seems you bias against Microsoft is spoiling your ability to get the facts right.
Posted by padant (6 comments )
Link Flag
Open source cannot coexit with patents
The GPO license prevents companies using published source in non-GPO licensed commercial development; intellectual property right patents prevent GPO developers from using their code. IBM's announcement assuring the LINUX community they will not pursue patent infringements against the LINUX kernel seems to bolster the notion that LINUX and Open Source developers in general have dipped into other people's intellectual property, otherwise why did IBM need to assuage the LINUX community?

Does SCO have an argument after all?
Posted by padant (6 comments )
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I wonder....
I wonder how the patent-hating, intellectual-property disregarding open-source community will accept a verbal promise from one of the world's largest patent-holders.

The minute Linux ceases to create growth at IBM, will not IBM be forced to "defend their company?" When IBM is sued by companies other than SCO, for IP theft, will they not be forced to defend themselves?

IBM made a very public non-statement that only served to acknowledge the patent violations plaguing Linux.
Posted by David Arbogast (1709 comments )
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world's largest patent-holders
IBM made a very public non-statement that only served to acknowledge the patent violations plaguing Linux.
<a class="jive-link-external" href="http://myweb.yahoo.com/myweb?ei=UTF-8&#38;dg=0&#38;friendid=9NNwZLPVBpddooSQt7oXaw--" target="_newWindow">http://myweb.yahoo.com/myweb?ei=UTF-8&#38;dg=0&#38;friendid=9NNwZLPVBpddooSQt7oXaw--</a>
Posted by Johni Depp (10 comments )
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Understatement: IBM more patents annually than any other computing co
IBM holds more technology patents than any
other commercial entity or individual in
history. It is currently the largest research
entity in the world. They make Microsoft look
like Arby's when it comes to technological
advances. IBM averages seven patents a day, and
these aren't Microsoft "grand-standing" patents.
These are patents for new technology that IBM's
reseach teams actually produced. It's thanks to
IBM that you are reading this message--since IBM
invented the computer essentials such as the
hard disk drive. IBM is the Prometheus of the
information age. If IBM's pledge is an earnest
one, Linux is in a good position to change the
way we view IP and the creative process.
Posted by (1 comment )
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