Open Source Community Gains Patents, Support

Earlier this month, IBM pledged 500 patents to the open source community to support development efforts in a wide range of fields, ranging from databases and networking to e-commerce and compression. IBM’s pledge of non-assertion will cover any open source project being developing under a license approved by the Open Source Initiative (OSI) (http://www.opensource.org).

During the analyst briefing, Jim Stallings, IBM’s Vice President of Intellectual Property and Standards in the IBM Technology and Intellectual Property Group, explained that IBM had taken the initiative to create a so-called patent commons to help reduce the fear and concern developers had about patents being asserted against technology and products they were developing, and hoped that other companies would follow suit.

The 500 U.S. patents represent just a mere fraction of IBM’s portfolio of over 41,000 U.S. and nearly 30,000 European patents – a portfolio which is growing at over 3,000 patents a year in the U.S. alone.

Stallings indicated that IBM wishes to foster collaborative innovation and enable open standards and that the initial pledge of 500 patents was only the start, and that more patents would be added to the pledge over time.

In a blatant and self-admitted attempt to grandstand and eclipse IBM’s pledge, Sun Microsystems last week upped the ante by granting a license to 1,672 patents, but only under the OSI-approved Common Development and Distribution License (CDDL) – a license that Sun derived from the Mozilla Public License. Sun’s announcement went hand-in-hand with the release of its Solaris operating system as an open source project, under the name OpenSolaris. Sun indicated that the patents it is granting a royalty-free license to under the CDDL are all directly related to Solaris.

The volume of patents IBM and Sun have basically donated for at least parts of the Open Source community to us is impressive, but what does it all really mean for developers?

In general terms, a patent grants the patent owner the exclusive right, for a period of time, to restrict others from making or using the invention covered by the patent. It is often overlooked, or at least misunderstood, that merely owning a patent to a particular invention does not grant the patent owner the right to make the invention. That’s because the invention could also be covered by other patents not owned by the patent owner.

Thus, the effect for developers of these two sets of patent licenses or pledges is that as long as they adhere to the terms of these licenses, they are assured that only IBM and Sun will not go after them for patent infringement. That is not to say some other company might not take it upon themselves to assert patents they own against certain Open Source developers or distributors of Open Source software.

IBM’s pledge, which more broadly covers all open source software developed under OSI-approved licenses, including the popular GNU Public License and the Mozilla Public License, also includes one exception. Namely, the pledge to non-assert is withdrawn from any entity “who files a lawsuit asserting patents or other intellectual property rights against Open Source Software”. This exception may well prevent one Open Source developer from suing another one, but would have no impact on closed source proponents, of which Microsoft is perhaps the largest and most vocal (ignoring for the moment the inevitable cross license agreements in place between Microsoft and IBM in particular).

Sun’s license, which addresses only the CDDL, and thus apparently only the further open source development of OpenSolaris, is thus much narrower in scope and cover. Further limiting its utility are numerous exceptions to the patent license as documented in the CDDL.

The value of IBM’s and Sun’s patent license offer to the Open Source community should not be totally discounted, as both firms have extensive R&D and patenting efforts and do produce meaningful technology. But on the whole, without a host of other significant companies bellying up to the bar to offer their patents on royalty free terms to the Open Source community, IBM and Sun’s offers are but mere tokens – good for public relations, and possibly good for inciting other companies to follow their lead with patents of questionable utility and coverage, but not much else.

All it takes is one small patent holding company with a good patent or two to cause major upset in the Open Source community, and then all the patents IBM and Sun own would not make one bit of difference.

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Charts/Tables

U.S. patents granted to Sun Microsystems by year – total granted since Sun’s founding = 4,288

Year U.S. Patents Granted
2004 651
2003 589
2002 511
2001 374
2000 483
1999 582
1998 453
1997 163
1996 117
1995 77

U.S. patents granted to IBM by year since 1981 – total granted since IBM’s founding = 41,372

Year U.S. Patents Granted
2004 3048
2003 3458
2002 3343
2001 3006
2000 2951
1999 2834
1998 2727
1997 1809
1996 1938
1995 1476
1994 1365
1993 1142
1992 875
1991 709
1990 638
1989 655
1988 575
1987 636
1986 632
1985 588
1984 618
1983 488
1982 453
1981 522

(Note – above information courtesy of Delphion. Includes patents of all subsidiaries and controlled entities.)