Europe Casts Wary Eye On IBM's Open-Source Patent Largesse

IBM's pledge to offer free and open access to 500 key open-source software patents reverberated throughout the software industry Tuesday and is likely to have an impact on the ongoing debate over software patents that has been raging in Europe.

In announcing the move Tuesday, IBM said: "The pledge is applicable to any individual, community, or company working on or using software that meets the Open Source Initiative (OSI) definition of open-source software now or in the future." The announcement came the same day that the U.S. Patent Office announced that IBM had filed 3,248 patents last year--more than any other company.

IBM's overall patent policy is underpinned by an effort to keep software and computer patents in force; the European Community has been debating the issue of software patents in recent months, and momentum has been growing to eliminate patents for software there--a move that would be detrimental for IBM and also for its arch-competitor, Microsoft.

"I think IBM is trying to kill two birds with one stone," said Florian Mueller, campaign manager of NoSoftwarePatents.com, a Munich-based association. "IBM wants to appease the open-source people in the U.S. and simultaneously influence the political debate over patents in Europe."

Mueller, who heads the association, said he doubts the IBM move will be able to stop the momentum that he says is growing towards outlawing software patents in Europe. NoSoftwarePatents.com is supported by Red Hat, MySQL AB--both developers of open-source software--and by Germany's 1x1, a large ISP.

IBM said the donation of the open-source patents represents a major shift in how it handles its intellectual property. "Continuing IBM's legacy of leadership in the strategic use of intellectual property, our pledge today is the beginning of a new era in how IBM will manage intellectual property to benefit our partners and clients," said Dr. John Kelly, IBM senior vice president, Technology and Intellectual Property, in a statement. "Unlike the preceding Industrial Economy, the Innovation Economy requires that intellectual property be deployed for more than just providing the owner with freedom of action and income generation."

The Open Source Development Labs (OSDL) threw its support behind the IBM move, and Stuart Cohen, its chief executive, said he hoped additional companies with open-source patents would join in the effort to build a portfolio of open-source intellectual property. IBM is a major supporter and member of the OSDL.

IBM and Microsoft have a history of protecting their software through patents. IBM has a broad patent portfolio of more than 40,000 patents, and Microsoft has begun to file software patents more aggressively in recent months. Recently, Microsoft's chief executive Steve Ballmer said Linux may violate more than 200 patents, according to the Reuters news service.

The patent systems in the U.S. and in Europe are different and uncoordinated .The European way of looking at software patents is currently being reviewed by different European governmental agencies. In recent days, European politicians have spoken out against patenting software, and these efforts have been thwarted to date, although the issue is unlikely to be resolved soon.

Mueller said IBM has been a driving force in Europe to extend software patentability, which he said squeezes small and medium-size companies with an "IBM patent tax."