On one hand, the 500 patents that IBM has released for unencumbered use by open source software developers
is a giant step in the right direction if you ask open source attorney
and advocate Larry Rosen. Said Rosen in David Berlind's podcast interview (download
the MP3) of him, "IBM is saying we will not assert these patents against you and that's a great relief." On
the other hand, some members of the anti-patent movement, particularly
those in the European Union like Florian Mueller, the campaign manager
of an anti-patent website, are accusing IBM of hypocrisy.
But,
is there more to IBM's pledge of non-assertion than meets the eye?
Could IBM's posession of certain patents actually work to the benefit
of the open source community in ways its not imagining? According to
the official text of the pledge, there's an exception clause that
virtually guarantees revocation of a developer's right to use the
patents:
"..the
commitment not to assert any of these 500 U.S. patents and all
counterparts of these patents issued in other countries is irrevocable
except that IBM reserves the right to terminate this patent pledge and
commitment only with regard to any party who files a lawsuit asserting
patents or other intellectual property rights against Open Source
Software."
According to Rosen, this language --
which he refers to as the legal language of mutually assured
destruction -- is a reasonable way of turning the pledge into a double
edged sword. During the cold war, according to Larry Rosen, the United
States said "we're going to protect South America and Europe and other
portions of the world with our nuclear shield. And if you go after us,
or any of them, be prepared to have our nuclear weapons strike you. I
don't think that's necessarily an ineffective way of dealing with a
problem."
Rosen characterized the open source community as
being somewhat defenseless against ruthless patent infringement claims
and said "In terms of intellectual property strategy, the open source
community on its own does not have a lot of patents and it is subject
to what happens by other companies who do have patents. In
this case, IBM is saying two things. First of all, 'Those patents are
now available to the open source community without any worry. We won't
assert them against you.' Second of all, it's trying to impose this
very specific and well defined shield and saying, 'Not only are these
500 patents available to the open source community, but, we may assert
these 500 patents against anyone who sues the open source community'
and that's a kind of 'you bomb us or our friends, and be prepared to be
bombed back.' There's nothing necessarily unethical about it. Countries do it. So should companies.
So,
who should be thinking twice about suing the members of the open source
community? Perhaps Microsoft. Has the eve of a patent nuclear war
arrived, or will the cold war hold? Only time, and a handful of patent
attorneys, will tell.
5:13:46 PM 
RadioEdit
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