Interview

Big Blue defends open source patent offering

Jack Loftus
What kinds of changes do you expect to happen in the open source community due to the release of these patents?
Hard to make specific predictions without running through the patents one by one, but I'm optimistic about the move for number of reasons. IBM stated that this is the first step and that it will continue its commitment to deliver additional patents like this or open additional patents in the future. In the announcement, they pointed out the patents involved in many of the cases were for technologies that are used in current open source and Linux developments. Also significant is the fact that the market has gotten pretty sensitized with the issued around IP in the last year … especially given suits and IT issues cropping up on regular basis. In August IBM made their LinuxWorld announcement where they said they would not pursue any infringement lawsuits against the Linux kernel. It was a way of assuring developers that Linux development is a solid commitment for IBM. On the other hand, Microsoft's whole approach to the patent issue has been notably "cautious" -- to use a polite term -- than any of the other vendors. It has done everything it can to discourage this type of behavior. Have other companies made similar moves like this one in the past?
Not of this magnitude, but certainly there has been some sharing and giving material to the open source community -- but not of this size. To be fair, however, Linux is a subject or issue that most systems

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vendors are pursing in one degree or another. One way to cultivate the market is to cultivate the developers in that market, and IBM has taken the lead in 2000 when they took the first jump into the Linux market and it has delivered.
I think [the donation] is a visionary notion; whether or not the other vendors join the circle in some kind of "kumbaya" remains to be seen.
Charles King
Principal AnalystPund-IT Research
Certainly HP has also made significant contributions to the market, but IBM has been better at stating things in very clear terms with more of a community aspect and as a central pillar of its ongoing strategy. You could say it is another step in a series of significant steps for IBM. Do you see companies following the prediction of John E. Kelly, IBM's senior vice president for technology and intellectual property, when he said that other companies would follow in the footsteps of IBM and begin to release patents?
ADAM JOLLANS: We are hoping it leads to "industry patent commons." What we are seeing in terms of market is that it is moving beyond development solely within companies to wide scale collaboration. Linux and Apache are good examples already and it showed us we needed a different way to go about it, which is the reasoning behind the patents. Do you see companies following the prediction of John E. Kelly, IBM's senior vice president for technology and intellectual property, when he said that other companies would follow in the footsteps of IBM and begin to release patents?
IBM is hoping the patent release was the first step in the idea of "open source commons." Basically, the commons are an interaction of a variety of people and it's a pretty interesting notion. I think it is a somewhat visionary notion; whether or not the other vendors join the circle in some kind of "kumbaya" remains to be seen, but to have that kind of common neutral ground where certain types of patents are accessible and used without any worry would be really great thing. Patent law has been described as difficult to those who do not practice patent law. Has IBM offered advice or support for those developers who wish to use them?
I'm not a lawyer, but I think the general open source community has got the sort of legal support it needs. [Patents] is a complex area, isn't it? But the statement [from IBM] is straightforward in that we pledged to allow any open source development to use patents as long as they meet OSI criteria and that applies to smaller projects as well. What do you say to companies that aren't so thrilled about the release of patents? Some say that patents are the only way they can protect their small company from larger predators?
I haven't seen much information on that yet and I don't know if common usage would take away the development of an exclusive piece of the market. As far as I know, IBM has created a lot of intellectual property. They've led the patent office for 12 years, but they've also been aggressive in selling the rights to those patents … the only real circumstance where there would be an issue would be if someone had somehow obtained an exclusive or limited license or were pursuing specific patent technologies and that patent was opened up -- but I think that number has been pretty limited. What do you say to companies that aren't so thrilled about the release of patents? Some say that patents are the only way they can protect their small company from larger predators?
We believe what is needed in the industry is a balance in terms of innovation and [the protection of] intellectual property. What we've done is share those patents with open source -- we are not dropping patents but sharing with open source. If a commercial company wants to use patents, then they would still go through the usual royalty procedures. This is still a way of helping to innovate, but we recognize the market is changing.
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If we had an exclusive use or a small number of developers utilizing a piece of IP and suddenly the patent became available to everyone, the potential for competition is increased. But I would also say the likelihood that other people would get into the niche is relatively small. What is your response to those who see this announcement as playing "two sides of the coin" -- both pro-patent with the European Union and dismantling the system in America?
Not enough tea leaves to see what the European Union would do on any of this stuff, but certainly the EU has taken a significantly different view toward IP than the U.S. government. Of course, the EU has taken very diverse view toward personal privacy. How this will play out is unknown, but it is something that I will be interested to see. Linux in the past year has reached a level of maturity where it has gained a significant level of momentum, but still lags behind Europe in some ways. What is your response to those who see this announcement as playing "two sides of the coin" -- both pro-patent with the European Union and dismantling the system in America?
What our goal here is to encourage innovation and we believe in collaborative innovation and that is our motivation for doing this. In terms of patents, we still support patents, and if you think about the inside of IBM, there is still a large number of patents. Look at this as an extension of that and sharing with open source. Kelly also stated this would not be the end of such announcements from IBM. Are there plans in place for others?
IBM hasn't announced further plans but this is certainly a radical change. What we're trying to say is that this is the start of a different way of approaching things and going forward … you can see this as a sort of follow-up to the stance that IBM would not assert litigation for patents against the Linux kernel.

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