I love open source software. Even more than that, I love free as in speech open source software. At the end of the day though, it is still software. It is designed to compete with other software products. People like the GNU use intellectual property in the form of copyrights to ensure that its software is used the way that the developers intended. Yet when a company tries to enforce its intellectual property rights against an open source project, people become outraged.
In this blog post, Florian Mueller rails against IBM for suing an open source project that competes with its mainframe software. In IBM’s complaint letter, it lists 106 patents that the open source project allegedly infringes upon.
The main force of Mr. Mueller’s complaint is that IBM promised not to assert 500 of its patents against any open source project, and two of those promised patents are listed in the complaint. So, removing those two, the project still infringes upon 104 patents. The outrage against IBM seems a little phony. I understand that some people think that patents, especially software patents, should not be granted. While I disagree with this position, the solution is to have Congress change the law. Until then, these are most likely valid patents. In fact, the article doesn’t even attempt to question the validity of the patents, other than to say that software patents in general are bad.
The article also tries to paint IBM as anti-open source. While I still hold a grudge towards Big Blue, this argument is pretty hollow. IBM didn’t take any action against the project when it was just a hobby. It only pursued action when a company started marketing the product in direct competition with IBM. It would be bad business for IBM to allow a competitor to use its own intellectual property to create competing products. This is just another excuse for anti-patent zealots to complain about not being able to steal IBM’s property and use it to compete against IBM.
The article then goes on to make anti-trust claims. It doesn’t present too many facts to support these contentions, so I can’t comment in this regard. At most, if successful, IBM would be forced to license the patents. The open source project wouldn’t be able to take them as it sees fit, it would have to pay to use them. I don’t think that is the outcome it was hoping for.
I agree that there are serious problems with the patent system, but the Constitution gives Congress the right to grant patents. While we should work to improve the system, throwing the baby out with the bath water doesn’t make things better. And most importantly, don’t blatantly infringe on a company’s patents and then use the patented material to directly compete with the victim company. It probably won’t end well.
Stephen Burch
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