IBM's decision to make 500 of its software patents (out of the 40,000 in its portfolio) available for royalty-free use by open source programmers triggers some thoughts.

(1) Which motive dominates: a desire to help open source programmers or to hurt IBM competitors? In the software business, making things available for free when your competitor is trying to sell a comparable product is sometimes called "performing a cashectomy."

(2) Do any these patents now make money for IBM? For example, according to software expert Martin Campbell-Kelly, IBM owns the fantastically profitable software that operates ATM machines. I doubt that any of these patents wound up in the released group.

(3) The move adds to the headaches of proprietary software companies already concerned that open source code might sneak into their wares. If this were to happen with code covered by an IBM patent, the proprietary company would be open to an infringement suit, since IBM's permission does not extend to any commercial use. It is not placing its patents in the public domain. Being sued by IBM, with a legal department that looks like something out of The Clone Wars, is considerably more serious than a phone call from an angry but broke open source programmer.

(4) For tech companies to review their patent portfolios and put material into the public domain would be a good thing. But making patents available differentially, according to the commercial motives (or lack thereof) of the user seems like adding another layer of confusion and transaction costs to what is already a worrisomely complex and transaction-cost-heavy system.

The net result could be ironic -- it might raise the costs of companies in dealing with open source programs, which would then encourage the use of proprietary software, where the seller takes care of the IP rights. (Aha - maybe those IBM people are really tricky; maybe they know this and are actually promoting their proprietary wing.)

CLARIFICATION: In para (3), "commercial use" means "incorporation into proprietary software." Obviously, open source software is often used for general commercial.

UPDATE (6:15 p.m.): See here.

posted by James DeLong @ 10:10 AM | Patents

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(0)