Comment: Patent MADness

by Dj Walker-Morgan

Patents could lead to the mutually assured destruction of the software industry and the parading of pledged patents in the opening of a dispute between IBM and TurboHercules threatens to upset the only progress towards a safer world for open source.

Patents are akin to the missiles of the Cold War. The super powers of the software industry have built up large arsenals of them to give them bargaining power. But if all companies who held patents were to pursue all infringements of their patents at the same time, there would be nothing left of the entire IT industry except the legal departments.

The open source and free software movements have found themselves treading a very fine line; by their very nature they cannot hold patents and enforce them without breaking the word or spirit of the software's license. So when corporations vow to put at least some of their patents "beyond use" in cases involving open source software, it is reasonable to applaud them for doing so. But, at the same time, it is also reasonable to call them when they appear to be moving those same patents into use.

This appears to be the case with IBM versus TurboHercules. TurboHercules use the Hercules open source IBM mainframe emulator, and the company is headed by the creator of Hercules. TurboHercules business plan was to offer a way for companies with IBM mainframes to create an off-site disaster recovery system for the mainframes without buying another mainframe. To that end they approached IBM asking on what terms would the company be prepared to license z/OS to customers to allow them to run on commodity hardware running Hercules.

IBM's response was to inform TurboHercules that it believed that it would be infringing a "non-exhaustive list" of 173 patents and patent applications if it went ahead with its business plan. The list contained two patents from IBM's 2005 Patent Pledge of 500 patents PDF which is said it would not assert against open source software. When Florian Mueller, founder of the NoSoftwarePatents campaign, noticed this he cried foul, though for Mueller, he was also calling a foul on IBM's entire patent attack opposed as he is to software patents.

But rather than IBM retracting the two pledged patents publicly, it said that it had only promised not to sue regarding the patents, was within its rights to include the patents on the list and that it stood by its pledge. This is like a country armed with nuclear weapons signing a weapons reduction treaty yet reserving the right to show off the missiles that were supposed to be dismantled in an annual parade, apparently fully assembled and ready to roll with the rest of the missiles. Imagine if that happened; there would most definitely be strong words spoken between the countries that signed the treaties and countries with no weapons would feel more threatened by the idea that the superpowers appeared not to be keeping to their word.

And so in the software world, there was understandable anger from open source advocates who felt there was a problem with IBM. Others though considered it business as normal and that those who are complaining are forgetting all the good work IBM has done for open source. But if IBM are not going to be called up on what is either reneging on the pledge or a administrative error because they haven't actually sued, yet, then when should the open source community protest? It's too late, when a case is heading to court, to protest as the issue is out of the court of public opinion and into the legal system.

That said, it is somewhat essential to isolate the overarching problems with patents from the specific problem of the pledged patents. The former is a systemic problem which requires complex negotiation, legal reforms and an industry wide consensus that the problem exists in the first place. The latter though is a specific problem, one that IBM can immediately resolve by saying "Sorry, those two patents were not meant to be there". That one move would reassure the community. IBM could, possibly, enhance their good reputation in the community by creating a new 2010 patent pledge which puts more of IBM's near 50,000 strong arsenal of patents "beyond use" against open source software. But for now, a simple retraction of two patents and an apology should do. It would affect none of the standing of IBM's 171 patents that they listed against TurboHercules.

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