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Open Season on Patents


By Meredith W. Salisbury


In early January, IBM scored gallons of news ink with its announcement pledging open access to 500 US software patents (and their international counterparts) to anyone working on open source programs, as defined by the Open Source Initiative. “This is believed to be the largest pledge ever of patents of any kind,” IBM said in a press release. John Kelly, senior vice president of technology and intellectual property, said the event marked the beginning of a “new era in how IBM will manage intellectual property.”

Not to be outdone, Sun Microsystems came out two weeks later with its own announcement of “the largest single release of patent innovations into the open source community” — granting access to more than 1,600 patents associated with its Solaris operating system. “Sun has always been an ardent believer in open standards and the open source process,” said CEO Scott McNealy.

Both pledges seem fairly straightforward: anyone has free rein to use the patented material, so long as they comply with the usual open source licensing arrangements. Neither IBM nor Sun is giving up the patents — declaring them expired, in a sense; rather, they simply promise not to enforce them, so long as people don’t abuse the open source requirements for using them.

Still, IBM’s announcement drew fire from critics. Leadership of the anti-software-patent movement reminded the community that 500 patents amounted to a drop in the bucket of IBM’s IP portfolio, which Big Blue says earned more than 3,000 US patents in 2004, making it the single biggest corporate winner of patents that year — for the twelfth straight year. Chatter in open-source blogs and other venues indicated a great deal of suspicion from the community as a whole.

But such suspicion is unfounded, contends attorney Lee Bromberg, an IP expert and partner at law firm Bromberg & Sunstein. “I think they’re looking too hard for a problem,” he says. “Certainly someone who takes the time to read the license agreement should be able to work with the stuff and do what they want within that arrangement, and without any concern about being sued for patent infringement or anything like that.”

Despite all sorts of guesses as to the companies’ ulterior motives for these releases, no one that I know of has raised what seems to be the most obvious answer: publicity and brand loyalty. “This looks to me like a decision that [the companies are] better off making a little less on the software and promoting the use of their signature code by every programmer they can get on board,” Bromberg speculates. That loyalty — using free access to convince people that their product “is the bee’s knees” — “will permit them to make up the revenue in services and in hardware,” he adds.

In other words, it’s a low-risk, high-reward action for IBM and Sun. They’re sure to be protecting their most lucrative patents, so the ones given up are probably not much of a revenue loss. If nothing else, the move means plenty of publicity. And if all goes well, it means an expanded fan base — many of whom no doubt make high-value IT purchasing decisions — who will be more likely to go back to each company for other products.

What does that mean for you? Nothing worth worrying about, it seems to me. Just because IBM or Sun might get some good word of mouth out of the deal, that’s no reason not to take advantage of the material covered in these patents — as long as you’re comfortable with the rules of open source software. And with any luck, these releases will prove the beginning of a new model for the informatics field, which could find tremendous benefit from this kind of patent-pooling phenomenon.

Meredith Salisbury, editor of Genome Technology, can be reached at [email protected] Her Legal Probe column on legal and IP issues affecting the genomics industry appears bi-monthly.


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