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CONTACT: Patrick Ross
January 11, 2005
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IBM Patent Move Raises Questions
PFF's DeLong Notes Software Maker Retains Rights

WASHINGTON D.C. - The decision by IBM to make 500 of its software patents (out of the 40,000 in its portfolio) available for royalty-free use by open source programmers should be greeted with caution, argues Jim DeLong, senior fellow with The Progress & Freedom Foundation. In the IPcentral blog, DeLong questions IBM's intent: "Which motive dominates: a desire to help open source programmers or to hurt IBM competitors?"

IBM isn't giving away this small assortment of patents, DeLong notes. "For tech companies to review their patent portfolios and put material into the public domain would be a good thing," he writes. "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."

DeLong also wonders whether any of these patents now make money for IBM. "For example," he writes, "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."

The move by IBM "adds to the headaches of proprietary software companies already concerned that open source might sneak into their wares," DeLong writes. "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."

It's possible that IBM's action could backfire, according to DeLong. "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.)"

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation