Developers voice mixed reactions to IBM patent policy

IBM's decision to give open source developers unencumbered access to 500 of the company's 40,000 patents was greeted with cautious optimism on Tuesday by some of the open source developers it was intended to help.

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Developers who welcomed the gesture also had words of criticism for the practice of creating software patents -- a form of intellectual property (IP) they generally oppose.

IBM has pledged to make the techniques covered by these patents available to companies or individual developers working on open source software, assuaging fears that open source products could someday be the subject of a patent lawsuit by IBM. But the announcement does not cover all of IBM's software patents, and open source developers contacted on Tuesday voiced some concerns.

"We certainly welcome the declaration of about 500 patents with open arms, but we still have questions." said Bruce Perens, an open source advocate and a founder of the Open Source Initiative. "One of the biggest questions is, despite this overture, is software patenting really good for the industry in general, and is it going to still be a very big problem for open source?"

Like Perens, many open source developers argue that patent law, which protects the techniques and ideas behind software programs, should not be used to defend software innovations. Copyright law -- which prevents unauthorized copying of the software itself -- is a much better protection mechanism for software, they argue.

Patents often are granted too easily and are extremely difficult for developers to understand, said Jeremy Allison, one of the lead developers on the open-source Samba project. Allison recently examined a Microsoft Corp. patent covering access control list (ACL) technology in Microsoft's Windows operating system and found it impossible to understand, he said. "I wrote the code in Samba that maps NT ACLs to Unix ACLs, and I couldn't understand the filing," he said. "These things do not promote useful progress in the arts," he said. "They are a minefield."

Allison, like Linux creator Linus Torvalds, said he would have preferred that IBM take a stance against software patents, but he welcomed Tuesday's announcement nonetheless. "It helps in that it starts to dispel the FUD (fear, uncertainty and doubt) ... around the patent issue and open source code," he said.

Intellectual property issues have become a hot issue for open source developers since The SCO Group launched a multibillion-dollar lawsuit against IBM in 2003, claiming that IBM illegally contributed code to Linux. A 2004 survey by patent attorney Dan Ravicher, executive director of the Public Patent Foundation, found that a total of 283 registered software patents, including 27 held by Microsoft, could conceivably be used as the basis of patent lawsuits against the Linux kernel.

However, Torvalds said that IBM's move was a good first step toward solving some of the problems with software patents.

"Will this make patent problems go away? Obviously not. Would I have preferred that IBM open all their patents, and speak out against software patents in general? Hey, sure," Torvalds said in an e-mail interview. "But no, that's not how things work. I'm pragmatic." he said.

Torvalds welcomed the fact that IBM's policy showed the business community a way to embrace the sharing ethos of open source developers. "The more people that think about this, and the more businesses that get comfortable with the notion of sharing, whether it be their copyrighted software or their patents, the better off we'll all be," he said

Though IBM also portrayed Tuesday's announcement as a first step in a broader effort to rethink the role its intellectual property portfolio can play in the industry, the company has no plans to call for an end to software patents, which made up approximately one-half of the more than 3,200 U.S. patents the company registered last year, according to Douglas Heintzman, director of technical software strategy at IBM. IBM's patent portfolio contains a total of approximately 40,000 patents, he said.

"If someone has made a significant breakthrough ... then they very well should be rewarded," he said. "We believe in IP, but we don't think that it should be abused in a way that inhibits collaborative innovation, and that's what we're talking about today."