IBM Goes From the Sublime To The Ridiculous On Patents and Open Source

In a continuation of the ongoing saga, IBM maintains it has not turned its back on the FOSS community, but reserves its right to assert patents against "non-friendlies"

Well IBM has responded to the firestorm that ensued from its asserting its patent protection against a small French open source start up, TurboHercules that I wrote about the other day. However, its response casts IBM in moving from the sublime to the ridiculous. 

Two different reports, one from eWeek and one on ZDNet UK have statements from IBM that they stand behind the letter sent to TurboHercules by their mainframe group CTO. They recognize that some of the patents referenced in the letter are part of the "sacred 500" that they set aside not to exert against open source developers, users or companies. They claim the letter is just referencing these patents in response to TurboHercules requests. 

OK, that sounds like they are trying to dance around the issue a bit. But then they go ahead and step in it. An IBM spokesperson says:

“In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies. We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules' motivations.”

The old dangling qualifier trick as Maxwell Smart would say. It just sounds like a load of doo doo to me. So now IBM says that they are going to be the arbiter of whose motives are pure and whose are not?  Will they become the thought police next?

This is a very slippery slope that IBM is rapidly descending on into the pit of hypocrisy. They should have stuck by the "we were just mentioning our patents to remind them" story rather than get into what people's motives are in open source.

Next are we going to have a litmus test as to whether someone or some group is "qualified" to not be subject to these patents? If we do use the litmus test I guess qualified users would turn blue ;-)

Seriously, IBM I tried to cut you some slack the other day for all the good work you have done for the open source community. But silly explanations like this are going to undo a lot of the good will you have worked so hard to build over the years.  Think again on this!

Bloggers Update:

OK, this is getting really confusing. Jim Zemlin over on just posted this note from Dan Frye, VP of open systems and member of the board of directors of the Linux Foundation.


There’s been recent interest in IBM’s “500 patent” pledge made in 2005 and how it applies today. It’s always important to get the facts, and the words of the pledge itself are the facts we need.

“The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.

“IBM hereby commits not to assert any of the 500 U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of Open Source Software.”

IBM stands by this 2005 Non-Assertion Pledge today as strongly as it did then. IBM will not sue for the infringement of any of those 500 patents by any Open Source Software.


Daniel Frye

VP, Open Systems Development

IBM Linux Technology Center

Now what do you think? Is IBM really speaking with a forked tongue here? Can't wait for the next episode.

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