When it comes to patents, IBM stands for 'International Bullying Machines'

In my previous post I stressed the responsibility that "mega patent holders" must exercise. Unfortunately, the biggest patent holder of all (at least in terms of U.S. patents) is also particularly ruthless in its use of patents against innocent people who never stole anything from anybody but developed technology on which some of IBM's tens of thousands of patents (many of them very broadly phrased) may read.

Massive numbers, doubtful quality

For the 17th year in a row, IBM received more U.S. patents than anyone else -- a whopping 4,914 just last year (2009). That's about 20 per business day (Mon-Fri).

Some already outdated statistics on IBM's corporate website talk about an "active" patent portfolio of 26,000 U.S. patents and over 40,000 worldwide. Since patents are valid (if renewal fees are paid) for at least 20 years, the size of the "active" U.S. patent portfolio seems to be an understatement because on the same web page IBM claims to have received more than 38,000 patents just between 1993 and 2007.

IBM currently has the largest U.S. patent portfolio (and probably the largest one worldwide), but a study conducted on behalf of Bloomberg and BusinessWeek ranks IBM only #8 in terms of commercial value of patents. This means IBM's patent portfolio has far more quantity than quality. Or in other words: compared to some other big players, the average value of IBM's patents was considered substantially lower.

That isn't too hard to imagine. Let's think about it: If those patent numbers were a measure of innovation, wouldn't we then have to see specimens of IBM's innovation all around us in our everyday lives, in our professional lives? Wouldn't there have to be some major breakthroughs from the last 20 years that any one of us would immediately attribute to IBM?

Who has ever held an IBM product in his hand? Well, I owned a ThinkPad sometime in the 1990s. It was a good product but there were countless other portable computers on the market that were at the same level. Hardly any of the components were invented by IBM itself.

If IBM were as big an innovator as its patenting activity suggests, how come there isn't really any big invention I come to think of in connection with IBM? If I read some history books, I might find out about their innovative activity 100 years or so ago. But where are their inventions now?

Patent pollution

Just to give you an idea, this is a list of IBM applications for U.S. patents that was published yesterday. That list probably refers to more than a day's filings, maybe up to a week's amount. Just some of the titles are dreadful. Look at these and think about how this might endanger you if you're a programmer or website operator:

• "Data Processing for Coding"
• "Source Code Processing Method, System and Program"
• "System, Method and Program Product for Detecting Presence of Malicious Software Running on a Computer System"
• "Web Page Editing"
• "Dynamic Generation of Data Entry Metadata"
• "Apparatus and Method to Control Access to Stored Information"
• "Managing Configuration Items"
• "Instant Message User Management"
• "Automatic Sales Assistant for Electronic Commerce Customers"

Critics of the patent system say that patents are increasingly being used not as a protection of investment in innovation but as a substitute for innovation. Looking at the list above, and the fact that experts seem to have doubts about the actual commercial value of IBM's patents, one may indeed wonder whether IBM is an innovator or, more than anything else, a well-oiled machinery for obtaining masses of patents, for capitalizing on the serious quality problem that the system as a whole has.

I'm not saying they're the only ones doing so, but they're doing it on a larger industrial scale than anyone else. This Register article says, in its last paragraph, "IBM wanted to point out that its total number of patents was larger than those from Microsoft, HP, Oracle, Apple, EMC, Accenture, and Google combined."

No matter what one thinks of the companies just listed: there can be no doubt that some of them have done far more for innovation during the last couple of decades than IBM has.

The old story of how IBM bullied Sun

I said in the beginning, with a reference to a previous post here, that IBM is also particularly ruthless in using its patents against innocent, independent innovators.

This Forbes article from 2002, entitled "Patently Absurd", tells the story of how IBM approached Sun Microsystems years ago. The Forbes article is really worth reading because it describes very vividly how IBM's lawyers approached Sun with a might-makes-right mentality. They didn't care about who was right on the issue. They wanted a $20 million check from Sun.

After Sun explained that they looked into the seven patents IBM originally claimed they infringed and they believe they weren't doing so (they actually thought six of the seven patents would be invalided in court anyway), IBM just pointed to the vast size of its patent portfolio and said that if they searched long enough, they'd certainly find at least seven patents Sun infringes on, so Sun shouldn't complicate things and simply cough up the money.

This approach became known as the "IBM Tax". Throughout the industry, IBM has approached companies like Sun and many smaller ones (who are in a much worse position to defend themselves) and made them an offer they couldn't refuse.

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FATal patent ruling in Germany?

Last week the Federal Court of Justice of Germany upheld a Microsoft patent related to the Windows file system named File Allocation Table (FAT). As H-Online mentioned in this context, European software patent critics dread the notion that rulings such as that one could elevate the status of software patents in Europe, where different national courts have different approaches to how to interpret the European Patent Convention and its exclusion of patents on "programs for computers [as such]".

Impact of decision yet unclear

Whether this ruling represents an endorsement of software patents in the largest European country remains to be seen. The actual decision has not yet been published. The court only issued a short (German-language) press release.

That announcement does not mention whether or not the validity of the patent had been called into question by a third party on the grounds of patentable subject matter. The press release only makes it clear that a certain CD-ROM-related protocol was not deemed to be relevant prior art since it solved a different problem than the one addressed by Microsoft's patent.

This is an important legal detail to know: the Federal Court of Justice of Germany is an appeals court and it is not even allowed to speak out on aspects of a case that are not formally put before it as part of an appeal. This means that even if the judges look at the patent as a whole and may believe that it could be invalidated for some other reason, they must not say what the outcome would have been if a different kind of question had been asked.

In this case, the previous instance (the Federal Patent Court of Germany) had declared the patent invalid, so it's a safe assumption that Microsoft itself filed the appeal in order to defend its patent against invalidation. If Microsoft's appeal related to the prior art question only, then the appeals court had to rule inside of that particular box. That's the way it works. An appeal to that court can have a very narrow scope.

Even though the press release begins with the result for this particular case -- the appeals court deemed the patent valid --, one has to look more closely to see whether there is a precedent that will make other software patents more likely to be upheld. When the full text of the decision is published, I will post an update.

FAT patents prove indestructible

This is not the first time that someone fails with an attempt to have one of Microsoft's FAT patents invalidated. Here's a CNET story from 2006 on the failure of a US-based organization (formally a non-profit but certainly designed to keep some lawyers busy) with a similar attempt.

There's an important conclusion to draw from this. Even though the FAT solution for storing longer file names in addition to shorter ones (8 bytes plus extension of 3) would seem "obvious" to most of us in a colloquial sense, this qualifies as "inventive" under patent law on both sides of the Atlantic.

If it were up to me, the legal test would have to be considerably higher. Instead of requiring just some limited evolution over existing technologies I believe the question would have to be whether a 20-year monopoly on a particular solution is justified. I for my part would deny it in a case like this, and it's by far not the worst. I'm hesitant to call it a "trivial patent" because I've seen so many software patents that are far worse. For a software patent, this is -- I regret to say so -- definitely not below the average level of quality.

With many patents comes great responsibility

Given the way the system works, I can't blame any company for filing such patent applications. Some large corporations like IBM and Microsoft file thousands of them every year now. I can also understand that if a third party then tries "patent busting", the patent holder doesn't want to lose what he's got, so he'll defend the patent against any invalidity claims put before patent offices and courts. That's understood.

The key issue is how patent holders, especially "mega patent holders", exercise the rights that the patent offices of the world grant them. If those organizations strike cross-licensing deals with their peers, it doesn't affect smaller companies and the FOSS community (who will never own a huge patent arsenal). If they use those patents as a measure of innovative capacity, one may disagree that it's the appropriate criterion (quantity instead of quality), but again doesn't hurt the rest of us.

Where things become problematic is when such patents are used to shut out competitors from the market, especially if a market is in dire need of more competition and customer choice.

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Caught in the ACTA: piracy and patents

Recently, the European Commission, the Canadian government and possibly other governmental bodies felt forced to shed more light on the ongoing international negotiations concerning the Anti-Counterfeiting Trade Agreement (ACTA).

The state of negotiations as per mid-January is now available on the Internet (such as here).

Many politicians and activists are currently looking for signatures for a motion by four Members of the European Parliament, demanding a more transparent process and voicing certain expectations concerning the content of the future treaty.

The fight against product piracy is a noble cause

It worries me a little bit that some critics of the proposal make such radical demands as "Stop ACTA". Nothing hurts the credibility of reasonable IP-related causes more than protecting, or at least appearing to protect, counterfeiters and other criminals.

There's no denying that product piracy is a serious problem. We live in an age in which non-material goods are the most important industrial resource. There must be effective prosecution of those who (no matter in which corner of this planet) refuse to accept the rule of law in this respect.

I know that some critics of the current IP system oppose the terms "intellectual property" as well as the use of "piracy" in connection with copyright and trademark violations. I have no problem with either term as long as no unresaonable expectations are derived from them. "Intellectual property" summarizes various rights that have differences as well as common elements. As long as people understand that physical and non-material "property" must be structured differently (in terms of rights, obligations, limitations), there's nothing wrong with it. And while "piracy" in its original sense is a suboptimal analogy for illegal copying and counterfeiting, the theft of intellectual property is clearly a bad thing that justifies the use of strong terminology.

Separating pretexts from serious problems

That said, serious issues such as product piracy must not be used as a mere pretext for imposing legislative measures that would go far beyond the legitimate objective pursued.

I can see why the intransparent ACTA process made some of its critics uneasy. The World Trade Organization (WTO) created its offspring, the World Intellectual Property Organization (WIPO), for dealing with such issues in a reasonably transparent and democratic manner. Counterfeiting clearly would fall within WIPO's scope, so if WIPO was purposely circumvented in connection with ACTA, this raises questions as to whether a worldwide group of experts working out the treaty simply preferred to be left alone instead of having to be accountable to a broader political audience, or even parts of the general public.

Therefore, the European Parliament's initiative for more transparency in the process is important and constructive. But let's be realistic about how much the European Parliament will really be able to achieve. MEPs have severe resource constraints and the analysis of the complex issues involved here may overtax the amount of working time they can make available for this matter. Also, ACTA addresses some matters of criminal law, which is still a responsibility of the EU Member States (not of the EU institutions).

A different effectiveness question might be asked about the extent to which ACTA can really bolster the fight against product piracy. In the industrialized democracies of the West, the protection of intellectual property rights already is at a fairly high level. In some other parts of the world, piracy is pretty much a part of the overall economic growth strategy (not a good idea in the long run for those countries, but a short-term approach in some of them). I'm not sure that so-called "one-disc countries" (the idea of a country in which only one physical copy of a given piece of software would be purchased legitimately and all ohers would use illegal copies) will all of a sudden turn into good-faith protectors and enforcers of IPRs just because of a treaty like ACTA.

Willful patent infringement vs. independent inventions

Based on the mid-January draft, it seems that one of the key issues in the ACTA negotiations is the extent to which patent infringement should be included as a form of piracy.

Some governments, especially the US government and the representatives of the EU, appear to favor the full inclusion of patent issues in ACTA. Others, such as Canada and New Zealand, seem to be in favor of limiting ACTA's scope, at least in essential areas, to copyright and trademark infringement, thereby excluding patent issues.

While copyright, trademark and patents are legally very similar liability regimes, there's certainly a fundamental difference in terms of how likely any given infringer is to be a "pirate". If someone copies a musical recording or a complete piece of software and does so on an industrial scale, the only rational explanation is that it's an act of piracy. But patent infringement is very often unintended, due to the fact (among other reasons) that all patent applicants and their attorneys try to phrase patent claims as broadly as possible, thereby maximizing the likelihood of infringement even by honorable people.

With software patents, unintended infringement is the norm and purposeful piracy is a rare exception. Apart from that, software piracy can be pursued on the basis of copyright without any need to bring patents into play.

Article 2.2 of the ACTA draft shows that there's a real danger ACTA may end up giving patent holders unreasonable leverage over unintentional infringers. In connection with damages, that paragraph has to either apply to all infringers or try to draw a line between criminals/pirates and other infringers. It looks like the EU and New Zealand proposed the insertion, after the word "infringer", of the passage "who knowingly or with reasonable grounds to know, engaged in infringing activity".

While it's good to at least try to draw that line, that wording still worries me a little bit. Someone who never steals anything from anybody and just happens to develop software on which someone else's patent reads could be considered a pirate once he has "reasonable grounds to know". This could mean that a single letter (maybe a formal cease-and-desist letter, maybe much less than that) pointing out potential patent infringement might turn an honorable computer programmer into (for purposes of ACTA) a product pirate. That's inequitable.

The biggest improvement to patent law that I could imagine would be an "independent-invention defense". Treating someone as a pirate following the receipt of a letter asserting infringement would be the very opposite approach.

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No such thing as a multimedia data format 100% unencumbered by patents

Speculations abound that Google may release the VP8 codec developed by On2 Technologies, a company it acquired recently, under a FOSS license.

One of the FOSS pundits advocating this move, Dana Blankenhorn, writes on his blog: "Open source — free, unencumbered open source — is going to become the default for basic Web video."

Wishful thinking vs. patent reality

I understand what Dana means and wants. It would be great if it were possible. But no one will ever be able to guarantee "free, unencumbered open source" in terms of a FOSS-based multimedia codec (encoder/decoder) module against which no one could bring up patent infringement assertions.

This BetaNews article offers a lot of insight and a headline that serves as a stern warning: "Google may face legal challenges if it open-sources VP8 codec"

That article explains that the patents Google acquired along with On2 cover "three principal video compression technologies" but all codecs are "developed around several bedrock technologies. Companies that either have claims to those technologies, or at least believe they do, could very well file suit if they believe Google was never licensed to give away methodologies they contend they have created, and thus own."

Ogg Theora: supposedly patent-free but Apple and others doubt it

Earlier today I commented on the "Patent Absurdity" movie. That one was made entirely with Free Software and is distributed in the Theory format (which is commonly referred to as either the "Ogg format" or the "Ogg Theora format"). The download page of the PatentAbsurdity web site claims that Ogg Theory is "a free and open video compression format" that "can be used to distribute film and video online and on disc without the licensing and royalty fees or vendor lock-in associated with other formats."

Sounds like the thing Dana Blankenhorn asked for. But is it really? Reliably?

According to TheRegister, at least Apple doubts it, referring to an "uncertain patent landscape" concerning Ogg Theora.

This is a general problem. It doesn't matter whether it's Google or any other vendor or a FOSS project: there's no such thing as a multimedia data format that anyone can absolutely guarantee to be unencumbered by patents.

Multimedia data formats and codecs: one of the worst patent minefields

Multimedia (audio/video) data formats and codecs are one of the worst patent minefields of all. One has to tread carefully, and some of those mines go off all the time.

Think of MP3.

Every year at CeBIT, the big IT trade show taking place in the northern German city of Hannover, there are raids where the police goes to trade show booths and confiscates product samples that violate different patents, many of them MP3 patents. This CNET article talks about how that effort was stepped up significantly in 2008 versus the previous years. Enforcement is becoming ever more rigorous. Unfortunately available only in German, this press release issued by the Local Court of Hannover talks about how the authorities set themselves up this year. They brought mobile printers along to CeBIT so they could immediately issue any warrants and court orders they needed. For a trade show that only lasts a week, if they needed several days to produce and deliver such documents they might not achieve the desired effect, at least not in full.

Let's be very clear: MP3 patents are simply software patents. While the most ingenuous aspect of the MP3 compression technique is to perform a lossy compression (intentionally "losing" data) because the human mind won't need certain sounds to still have a very similar acoustic impression, MP3 isn't just a single patent but instead a whole family of patents. I haven't checked lately but I once heard that there are several dozen MP3-related patents. Obviously they're not all related to psychoacoustic research. Many of them are purely mathematical. If MP3 players infringe them, they use algorithms covered by the patents, and those patents will read on hardware as well as software implementing the methods taught.

Some of those alleged "pirates" pursued by the German police at CeBIT may even use FOSS components that play a role in the asserted infringements. But using FOSS obviously won't make them immune from patent law.

The impossibility of reliable patent clearance

Even if Google now made its very best effort to identify any patents that could read on VP8 (and Google has a level of sophistication and quantity of resources matched by only a few in the world economy), there would never be a 100% reliable guarantee that no one would ever be able to (or at least be able to attempt to) assert some patents against that codec.

What professionals call "patent clearance" -- ensuring that a given product doesn't infringe any of a group of patents -- is impossible in this case because to do clearance, you need to have a finite quantity of patents to check on. If I owned 145 patents and gave a list to you, you could check if any of your products is in any way related to them. Many of them might turn out at first sight to be irrelevant. Others may appear potentially relevant and require a closer look. Anyway, sooner or later you'd be done.

However, when you don't know where the risk is coming from -- from which large patent holders, from which small one, or from which troll --, then you don't even know where to begin with your clearance effort.

Would full-text search help? Not really. In some areas such as chemical and pharmaceutical substances, there's a certain nomenclature and you could run pretty specific searches for patents covering methods to heal a particular disease. But for multimedia data codecs there isn't a particular terminology. There are words that will help find some of those patents. But other patents of this kind may not use any of those terms and still be relevant.

What makes it even harder is that you'll never be able to look at patents that are in stealth mode, meaning the applications have been filed but not yet published. Those you will only see after a certain period of time, such as 18 months. But theoretically you can infringe them any day after they've been filed and be held responsible later.

Repatenting (not reinventing) the wheel

Also, patent offices have resource constraints but are inundated with patent applications. As a result, it happens all the time that they grant patents on "inventions" for which there actually is prior art. In that case you may very well be able to get the patent invalidated in court, but the risk is yours and since the outcome is never 100% certain, you might be forced to pay royalties nonetheless.

To give you a funny example (strange kind of humor, some might argue) of how easily a patent office may grant a patent on a very old "invention", here's a story from Australia on a patent granted nine years ago ago on the concept of a wheel. Yes, a wheel.

In all fairness, I have to point out (as the article does) that it wasn't a regular patent. It was what they call an "innnovation patent" in Australia, a kind of fast-track low-cost patent that undergoes very limited scrutiny. But even with the smallest amount of scrutiny imaginable, granting a patent on a wheel in 2001 is incredible. Still, it happened. And if this can happen with something as simple as a wheel, think of what this means for multimedia data formats, compression techniques, and codecs.

FOSSpatents Twitter account

I just did the first FOSSpatents "tweet", simply a link to my previous post, entitled "The 'Patent Absurdity' movie: well-meant but ineffectual".

You can find the FOSS Patents blog on Twitter at this address: http://twitter.com/FOSSpatents

The 'Patent Absurdity' movie: well-meant but ineffectual

Several of the people with whom I fought against a proposed European law on software patents a few years back have recently mentioned the new "Patent Absurdity" movie, a 30-minute production trying to make the case against software patents for a broader audience. So I took a look. My take: it's certainly well-meant and was probably done under severe budget constraints, but it's not going to change anything for the better, not even on a very small scale.

Web 2.0 campaigning

I regret having to say so because in recent years I saw videos on YouTube covering other information society causes. They were also low-budget and struggled to project complex, abstract issues onto the screen, but some of them seemed more effective than this one. Whenever I saw those, I felt that anti-software-patent activism had failed to embrace Web 2.0 techniques. When I did my campaign, we didn't have YouTube (it was just founded when the EU process on software patents was already in the home stretch) nor Twitter (founded years later). We clearly operated in a Web 1.0 world.

About a year ago there was a demonstration in Munich against patents on animals and plants (euphemistically labeled "biotechnological inventions") and Richard Stallman gave a speech, translated to German by Hartmut Pilch, trying hard to make the case that software patents are just as undesirable as animal and plant patents and that even farmers should care about them. The speech was filmed and uploaded to YouTube (part 1, part 2). While I'm not sure the farmers really ended up caring about software patents as much as about patents affecting their own trade, that recorded speech is actually a better piece of video against software patents than "Patent Absurdity". Especially if one added the animation at the end of "Patent Absurdity" (showing a musical composition falling apart due to patents) to that video. That final part is far better than the rest of "Patent Absurdity".

Trying to achieve the impossible

The biggest problem of the "Patent Absurdity" project is that the makers of the movie tried to achieve the impossible: to explain the issue of software patents to a broader audience in an understandable, convincing format.

I have my own experience with that and it's sobering. When fighting against a proposal for European software patent legislation, we had to try to explain the issue to politicians all the time. Of all the politicians I met, only one had a computer science degree and professional experience in that field (Ulrich Kelber, now a vice chairman of the social democratic group in the German federal parliament). I never even tried to get an appointment with Angela Merkel, now the German federal chancellor. It is known that she, a scientist, did a certain amount of programming in the 1980s. But the largest professional group among politicians are definitely lawyers (and 99% of their advisers), probably followed by teachers, and I think there are still considerably more farmers among them than programmers.

None of us software patent critics ever managed to make a non-programmer really understand the issue the way we can understand it. It's just not possible. If someone tried to explain to me the beauty of a Chinese poem, how would I, not speaking a word of Chinese, be able to understand? Theoretically I might: if I learned Chinese to fluency (an effort that would take years) and then looked at the poem and got an explanation. With software patents it's quite similar.

Abolitionism and line-drawing

In order to do away with software patents, there would be two political approaches. One is to demand a far-reaching or even complete abolition of the entire patent system. "Patent Absurdity" contains a couple of statements that can be interpreted as that kind of a demand, and a variety of critical remarks that are not specific to software patents. However, complete abolition is unrealistic. That system is hundreds of years old, influential, and resilient. The average citizen isn't going to support abolitionism because most people still believe (right or wrong) that a patent is fundamentally a good thing.

The other approach is to accept patents in general but to try to exclude software from the scope of patentable subject matter. That's the line-drawing approach. That's exactly what the European Parliament tried to do in the legislative process we had over here, and the Bilski case (the context in which "Patent Absurdity" was made) could result in a US Supreme Court decision to that effect.

Much of "Patent Absurdity" indeed seems to advocate line-drawing, though not very clearly. The makers apparently wanted it to be just about informing people, not about voicing explicit demands. But I believe it's not very realistic in a political context to talk about a problem without proposing a practical solution. By failing to do the latter, "Patent Absurdity" doesn't end up being "all things to all people". It's more like being "nothing to anybody".

A matter of trust

Does it represent a diversity of opinions? Not really.

The two guys in the beginning who defend a software and business method patent don't give real representation to the proponents of those kinds of patents, such as big industry.

Then there are the critics, who get most of the speaking time. Some of those are absolutely sincere critics of software patents: RMS (who has been fighting against them since 1990), Jim Bessen (with whom I was on a discussion panel in Brussels years ago), Ciarán O'Riordan (whom I saw on a couple of occasions during the fight against software patents; however, I may feel forced to criticize the FSFE's approach to interoperability at some later point in time). I also do have the feeling that Ben Klemens is sincere about his opposition (I read an excerpt from his book "Math You Can't Use"), and of all the lawyers in the movie (some of whom I never met), the one I would place by far and away most trust in is Dan Ravicher. But I can't vouch for anyone else I know in the organizations he works for.

In the movie I spotted a lawyer who tried to keep the European software patent proposal alive when we had already defeated it. I published proof of that a few years ago and it's probably still somewhere on the Internet. Since he doesn't say anything really new in the movie, there's no need to bring up that story from five years ago until he does negative things in the software patent context again. There's also at least one other person who has shown a greater interest in benefitting from the software patent system than in bringing about change.

So what's the point?

I guess they wouldn't even have been able to agree among that kind of group on what they'd like to see happen. But then, what's the point? Education won't work without getting people to learn programming. A proposal for the future or call to action is not made. And why in the world would anyone spend 30 minutes watching a video that is neither exciting nor entertaining, and not even particularly enlightening? I can't see that.

I regret having had to say all of the above and I can only hope that someone else will do something better at some time, maybe with a more realistic goal, maybe with a bigger budget. But realistically, software patents won't go away until the call for abolition is supported by some of the major players in the industry. Theoretically it could also work with small and medium-sized businesses but in my experience that just doesn't work because those SMEs who oppose software patents don't want to spend any significant amount of time and money on it. As long as it looks to politicians like mostly a cause for the FOSS community without major economic interests behind it, it's hard to see how change could be brought about. Watching "Patent Absurdity" just reaffirms that view. Unfortunately.

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The patents used by IBM against Hercules are a threat to several major FOSS projects

As I reported last week, IBM sent a list of 173 patents (67 of them applications) to the founder of the Hercules open source project.

Meanwhile I have taken a closer look at some of the patents. The patents IBM uses against Hercules are also a potential threat to other key FOSS projects. Based on a first analysis, those include (but are not limited to) OpenBSD, Xen, VirtualBox, Red Hat Enterprise Virtualization, MySQL, PostgreSQL, SQLite and Kaffe.

I will list below the relevant patent numbers and explain why I believe they could be used against certain projects. Considering that IBM has already used them in a threat letter to TurboHercules, those patents must be considered particularly dangerous. I just explained why IBM's attack on Hercules is an attack on interoperability and FOSS innovation in general. The fact that the patents in action here are also a threat to other key FOSS projects underscores the need to act.

At the end of this post, I am asking the FOSS community to contribute to this important analysis in various ways. I will then check on the material I receive and post the relevant contributions to this blog.

Note that the analysis below doesn't talk about actual or even likely infringement. It talks about potential issues. A wording like "patent A could read on program B" means that given what program B does, further analysis is required whether patent A covers a method used by program B. Even if that were to be the case, it's still possible that patent A could then be invalidated based on prior art.

Here's my initial analysis:

US Patent No. 5,953,520
(#65 on list IBM sent to TurboHercules)

This patent applies to any emulator that emulates a computer with virtual memory. This includes virtualization software, such as Xen, VirtualBox or Red Hat Enterprise Virtualization, as well as emulators and simulators.

US Patent No. 6,009,261
(#63 on list IBM sent to TurboHercules)

This patent reads on many emulators including virtualization software, such as Xen, VirtualBox or Red Hat Enterprise Virtualization. It teaches a method of reflecting the specifications of a guest instruction into the semantic routine of host instructions which emulate that guest instruction. That method is used by many emulators.

US Patent No. 6,654,812
(#46 on list IBM sent to TurboHercules)

This teaches a method for transferring network messages between partitions without going onto the network. This method or a very similar one is most likely used in virtualization systems, such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 5,875,336
(#70 on list IBM sent to TurboHercules)

This patent teaches a method for translating Java Bytecode. This could apply to Java Virtual Machines such as Kaffe.

US Patent No. 6,748,460
(#42 on list IBM sent to TurboHercules)

This patent describes a method that could be used in a virtualization system (such as Xen, VirtualBox or Red Hat Enterprise Virtualization) to present interrupts to a VM.

US Patent No. 6,615,373
(#47 on list IBM sent to TurboHercules)

This patent describes a method for resolving potential deadlocks. The resolution of deadlocks is key to the functioning of multi-threaded database servers. This could read on MySQL, PostgreSQL and SQLite in addition to any other database management system (still checking into object-oriented and other "NoSQL" databases). It is also possible but less likely that it could read on distributed caching software such as OSCache or JBoss Cache, which cache Java objects on servers. It is more likely that these use broadcast invalidates but needs checking.

US Patent No. 6,209,106
(#60 on list IBM sent to TurboHercules)

This patent describes a method for setting clocks on a variety of different Virtual Machines using offsets. This would be an obvious solution to the problem in a VM system such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 7,127,599
(#28 on list IBM sent to TurboHercules)

I'm still struggling to read the claims in this one. However, it could apply to managing I/O subsystems in a Virtual Machine system, such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patents No. 6,332,171 / 6,339,802 / 6,345,329
(#58, #56 and #55 on list IBM sent to TurboHercules)

These patents describe a method of using queues to handle data going to and from an I/O device. The use of queues is common in operating systems such as GNU/Linux and openBSD as well as in virtualization systems such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 6,971,002
(#34 on list IBM sent to TurboHercules)

This patent describes a method for booting a partition of a computer system without restarting the system. It would likely apply to Xen and VirtualBox to the same extent it would apply to Hercules.


CALL TO RESEARCH

This initial analysis requires further scrutiny and exploration. I therefore call on everyone in the FOSS community with an interest in this matter to help expand this.

Like I said further above, I will publish the input (to the extent it is relevant) on this blog. I will do so anonymously to protect all sources. I don't want anyone to have to fear that their project could make itself unpopular with IBM for contributing to this effort here. (If anyone wants to be credited for a contribution, you are free to blog about it yourself.)

The key areas of research that would help me are the following:

• further detail related to the initial concerns identified above, leading to more specific explanations and possibly claim charts


• any examples where additional ones of the patents IBM listed (the letter containing the list is available as a PDF file and in multiple PNG files) might read on FOSS projects


• any examples of other IBM patents beyond the 173 asserted against Hercules potentially reading on FOSS projects

Please use the contact form to send your input.

Based on more analysis of all of this, we may then consider what kind of commitments we ask IBM to make. It's always been clear to me that IBM's pledge of 500 patents was a drop in the ocean. I criticized it on the day of the announcement. Later that year (2005), I wrote this Slashdot op-ed on the issue.

IBM has 50,000 patents or so, and gets 4,500 new ones every year.

As Richard Stallman puts it, if you have 100,000 mines in a park and you take out 1,000, the park is still not safe to walk.

It was a PR stunt by IBM and they weren't sincere about really reducing in any meaningful way the threat their patents represent to FOSS. Now that IBM has actually started to use patents against FOSS, it's key to understand the danger so it can be dealt with appropriately. For everyone developing or using FOSS, not just Hercules.

IBM's attack on Hercules is an attack on interoperability and FOSS innovation

A small minority of commentators has suggested that the FOSS community should sacrifice Hercules to the Generous Gods of Armonk. With all that IBM has in their view done for FOSS -- mostly Linux -- over the years, those commentators believe we should turn a blind eye to what they are doing in this case. Let's not get into historical examples where this seemingly pragmatic approach failed miserably in foreign policy.

Matt Asay, an executive with Ubuntu company Canonical, says IBM's behavior "isn't cause for concern. It's cause for celebration." But once the same happens to Ubuntu, the one thing he surely won't do is celebrate. And a blog whose founder admitted that it began as an effort to assist IBM's legal department (and who has ever since been far more loyal to IBM than Rush Limbaugh to the Republican Party) even encourages IBM to sue Hercules aggressively.

Again, it's a small minority only. I remember the phenomenal support my NoSoftwarePatents campaign received from the FOSS community. I'm sure that's still the position of a FOSS majority. No one in his right mind wants patents to be used against FOSS.

It's also my impression -- I'm just describing, not setting norms -- that the ethical values of the FOSS community include the principle of solidarity.

Nevertheless, some may underestimate the broader implications of the Hercules case.

A huge market in terms of dollars, small in terms of people

Obviously Hercules doesn't have the massive number of installations (estimates are in the 5,000 to 10,000 range) some of the most popular FOSS projects have. Then there are only an estimated 10,000 to 12,000 mainframes in use today, but they power some of the most important applications of enterprises (banks, insurance companies etc.) and governments (social security etc.). Since there is so much money spent per user, the mainframe software market (approximately $25 billion) is twice as big as the GNU/Linux software market. But since there's a limited number of professionals using mainframes (and knowing how to use them), it follows that there won't be millions of people running a mainframe emulator on x86/x64 hardware.

IBM determined that mainframe dollars trump FOSS relationships

Apparently Hercules is indeed important enough that IBM has decided to attack it no matter what. In pursuit of this objective, IBM simply takes into account that the whole FOSS community can now see that IBM is just a business with an opportunistic approach to FOSS: IBM uses FOSS for its purposes but will also use anything (including patents) against it. IBM portrayed itself as friend who would always give, never take. As an exemplary citizen of the FOSS universe. When IBM's patent threat letter to TurboHercules was made public, that hypocrisy was exposed.

The problem is that every major software patent holder has business interests where there are conflicts with some FOSS projects. The economic argument -- "there's a lot at stake" -- must not be considered acceptable to justify patent warfare.

The FOSS way of innovation exposes all FOSS to patent attacks

By this I don't just mean the fact that the publication of source codes facilitates the identification of infringement. I mean something more important:

The kind of "innovation" that the patent system rewards and the FOSS way of innovation are fundamentally different.

A patent office grants a monopoly (for at least 20 years) to the first to file a patent on a software idea no one else has previously published or filed a patent application for. In jurisdictions with a grace period, there's the first-to-invent principle, but within the grace period the original inventor has to file.

FOSS projects usually aren't the first to invent a general software idea, let alone the first to file a patent application. Still, FOSS isn't a copycat. FOSS innovates in a different way, and that way is now being jeopardized by IBM with its patent aggression.

Innovation in software is not just a matter of being the first to have and register a general idea. Innovation in software very much consists in the cost-efficient, stable, bug-free, secure implementation of such general ideas -- even if one is not the first. FOSS is often a force of disruptive innovation, serving to commoditize (turning an exclusive, costly type of product into something widely available and affordable).

Why is IBM against Hercules? Because for a number of mainframe-related purposes, it has the potential for commoditization. Being able to take some applications down from a million-dollar mainframe to a $5,000 Intel-based server is a fantastic example of commoditization. This is FOSS at its best.

Why does IBM use patents against Hercules? Because that's where FOSS is strategically disadvantaged.

If you run a FOSS project, think about whose business you are commoditizing (now or in the future). Then take a look at the patents the affected company or group of companies owns. It's scary.

IBM fighting with patents against interoperability

The last point is very important: The Hercules case is an interoperability case.

The right for FOSS projects to interoperate with existing prioprietary/closed-source software is a fundamental issue. IBM itself has demanded that right in other contexts. Now it denies Hercules that right.

FOSS purists would want the whole world to give up proprietary software altogether. It just won't happen too soon. Especially in an old and slow market like the mainframe business, that can't happen overnight. Companies have invested trillions of dollars in mainframe infrastructure, a lot of which relates to in-house software development. We're talking about an estimated 200 billion (that's 200,000,000,000) lines of mainframe code in use today.

So Hercules wants to interoperate with existing mainframe software. For companies looking to switch to FOSS step by step (which is the only realistic approach for large corporations and governments), the first thing that's required is the right for Hercules to interoperate.

That interoperability begins with the emulation of the CPU instruction set (machine language) of the mainframe architecture (System z). Whether you run z/OS, z/Linux or any applications on top of any mainframe operating system, Hercules can only perform its emulation job by interfacing with other software through that mainframe CPU instruction set.

A CPU instruction set is simply an interface (or if you will, a protocol) for communication between the CPU (or, alternatively, an emulator such as Hercules) and the layer above.

It's no less of an interoperability case than word processor file formats, network file transfer protocols or anything else that FOSS needs all the time to serve its purpose in a real-world setting where proprietary software and FOSS are used in parallel.

Do you still want to be able to open Word and Excel documents with OpenOffice? Do you want to run a heterogeneous network of Windows and GNU/Linux machines and exchange data freely? If the answer is yes, then you should care about Hercules.

For interoperability's sake, and for many other reasons including the ones mentioned in this post, we must not view Hercules as an isolated case. We all have to understand -- and make others (including regulatory agencies) understand -- the far broader implications of IBM's conduct.

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I'd rather discuss patent issues than LinkedIn lists (updated once)

My previous post stressed that the two pledged patents with which IBM threatens Hercules are important (in terms of whether one can trust them) and unimportant (because there are 171 other patents with which they threaten) at the same time.

But I didn't think my LinkedIn contact list was "important" until I saw this BoycottNovell piece focusing on a contact I recently added to my LinkedIn list: Erika Mann, a former Member of the European Parliament and now Executive Vice President of the Computer & Communications Industry Association (CCIA).

As long as people try to sling mud at me, that's one thing. Once people start talking about contacts on a platform like LinkedIn, where the contacts one makes are (at the most) shown only to those on the contact lists of the two connecting people, semi-public things are catapulted into the blogosphere for no legitimate reason, other people than me are affected and things are generally getting out of hand. More importantly than that, BoycottNovell's speculation is fundamentally flawed, as I'll explain quickly.

I had actually mentioned in my press roundup on Wednesday a BoycottNovell comment that said "SHAME on IBM" and thought at the time that they were now going to focus on the issue itself. I took note of a more recent comment on their site that "IBM deserves some scrutiny", although the addition "but not too much" makes little sense to me.

Today's BoycottNovell story on this matter has the headline: "Florian Müller Seemingly Connected to CCIA (Microsoft Proxy)" The summary, correspondingly, claims that "Müller set up his anti-IBM blog when he got connected with CCIA’s Executive VP, who works with Microsoft"

Further down, BoycottNovell says:

One thing that came up some time between March 22nd and March 29th is that Müller added a LinkedIn connection to Erika Mann, CCIA’s Executive Vice President and head of CCIA’s European office (Microsoft and CCIA work together [1, 2]). That was just before he started to attack IBM like he also attacked Oracle some months ago (along with the GPL). He even created a new blog for this purpose

Now the facts:

• I have known Erika Mann not just recently but actually since 2004. Then-FFII President Hartmut Pilch and I met her in fall 2004 in the European Parliament's Brussels building and discussed the then-ongoing legislative process concerning software patents with her. She was an MEP from 1994 until 2009.


• On November 9-10, 2004, the FFII held a conference in Brussels on "Regulating Knowledge: Costs, Risks and Models of Innovation". One panel of that conference was chaired by Erika Mann, who was then the chairman the European Internet Foundation (EIF), whose members already then included IBM as well as Microsoft and many others. There was an EIF event on software patents in the evening of November 10, 2004, thus after the closing of the FFII's conference, and Erika Mann invited all participants in the FFII event to attend her conference as well. I found this FFII mailing list announcement of her participation, also mentioning the EIF event. That week I was a speaker at both conferences (FFII and EIF). There are countless witnesses so that no one can ever doubt that fact and therefore my long-standing contact with Erika Mann.


• I participated in several more EIF events in the following years that focused on patents and other intellectual property rights issues.


• In 2007, the European Parliament made a resolution on the future of professional football (soccer) in Europe. Erika Mann was not a member of the lead commmittee (Culture & Education) but she is a soccer fan and took a personal interest in the related issues (which are predominantly antitrust issues, by the way). I defended the interests of my long-standing friends in the management of Real Madrid, the world's most famous soccer club, in this context. Two members of Erika Mann's staff in her constituency office in Germany were Real Madrid fans. We were in contact on this policy area as well, not just software patents.


• After she left the European Parliament last summer, I tried to reconnect with her on LinkedIn. I found a profile but it only had one connection, so it looked inactive.


• I didn't know she was now at the CCIA until I learned about it when she was quoted in media reports on TurboHercules' antitrust complaint against IBM, especially this IDG story on March 23, 2010.


• I looked up LinkedIn again, saw that she had a profile there that was up to date and now had a number of connections (so unlike before, it was an active profile), and I reconnected.


• By way of contrast, I had added two TurboHercules executives months earlier: Roger Bowler on November 28, 2009 and Bill Miller on January 26.


• None of what I wrote on my blog was coordinated with Erika Mann in any way. Nor with any other CCIA official.


• I can't see how the CCIA could be equated with Microsoft. Its members (here's the complete list) include, besides Microsoft, big Microsoft competitors such as Google and Oracle, other big players such as eBay, Fujitsu, Intuit, T-Mobile and Yahoo, and the FOSS community may take special note of the fact that Red Hat is a CCIA member as well. The notion of a group assembling members of this nature and stature being a Microsoft front is downright absurd. Otherwise BoycottNovell would have to rename itself BoycottRedHat ASAP.

Let's leave people's LinkedIn contacts alone. I have 290 connections there, including two or more who work for IBM by the way. A connection there means that people know each other. There are some people on my list whom I've never met in person, and some whom I haven't seen in many years.

So let's focus again on the enormous threat that IBM's patents - 99% of them unpledged - constitute to Free and Open Source Software. IBM has tens of thousands of patents, obtains several thousand new ones year after year and has now demonstrated that it's prepared to use them to protect its business interests against perfectly peaceful FOSS projects.

Yes, perfectly peaceful. IBM's defense clause was never triggered by TurboHercules, as I wrote earlier. And contrary to IBM's gross misrepresentation, IBM alleged an "intellectual property" infringement before TurboHercules ever said "patent", "intellectual property" or anything like it. That's something you can verify here. There were two IBM letters, the first one already asserted an infringement, and both of them have been made public.

Those are the real issues.

--- Update ---

On his website, Roy Schestowitz, the author of the BoycottNovell story, posted some follow-on questions to me that I will quickly address here:

I have just read your response. Therein, you don’t deny what I wrote (instead you attack straw men, e.g. I didn’t argue that you had not known Erika Mann beforehand).

The BoycottNovell piece didn't claim that there had not been any prior contact. However, I have explained why the LinkedIn connection was created only recently for reasons that make BoycottNovell's speculation about any factual context baseless.

"In fact, you dance around the issue just as TH danced around the question about its relationship with Microsoft (which was later made very obvious)."

The only issue I cared about was the insinuation that the timing of the LinkedIn connection and the timing of the blog indicated anything relevant to BoycottNovell's conspiracy theory.

"Be sure to follow the links and see my explanation of why Microsoft funds CCIA and Black in a very special way; don’t conveniently omit details, please."

I don't omit anything that's relevant but of course I have no reason to deal with utterly unconvincing conspiracy theories when I have actually explained, without knowing the internals of CCIA at all, that the mere fact of the membership of the companies I listed further above here already proves that CCIA cannot be equated with Microsoft. There are big, powerful, famous players in there, some of them fierce Microsoft competitors.

"So, Florian, are you in contact with TH and CCIA?"

Unfortunately, this question at this point (after I wrote this post originally, that is, everything above the word "Update") raises serious doubts about whether I can expect a minimum standard of reasonableness on BoycottNovell's part. I have answered both parts of the question, contact with TH and contact with CCIA, unambiguously in the upper part of this posting.

"Have you been in touch with Carina Oliveri?"

My LinkedIn list might also contain the answer to that question, but it's an irrelevant question because I have not denied in the original posting (see further above) the fact that I added two of TurboHercules' founders to my LinkedIn contact list months ago, so if I answered questions about additional TurboHercules people, it wouldn't add anything.

Even if it did add anything, none of that would change anything about IBM's conduct.

End of discussion as far as I'm concerned.

The pledged patents are important in one way and unimportant in another

Since there is so much talk about it, let me point out (as I did on previous occasions) that the pledged patents IBM threatened to use against TurboHercules are important in one way and unimportant in another. Both at the same time.

• Those two patents are important because they have to do with the extent to which IBM can be trusted. IBM wanted to curry favor with the community but didn't honor its promise.
  
  After that happened, the proper way for IBM to handle this would have been admit right away (on Tuesday, when its letter was published and IBM issued its first official reaction) that it should never have tried to intimidate TurboHercules with those pledged patents. It should not have listed those patents at all, or if it had listed them, it should at least have added a footnote to make it clear that those patents would never be asserted against FOSS.
  
  However, the way IBM did react only made things worse -- and the question of the pledge more important than it would otherwise have been.
  
  IBM still hasn't said certain key things in an unequivocal form, such as that the Hercules project undoubtedly qualifies for the benefits of the pledge and that TurboHercules hasn't done anything that would trigger a defense clause. IBM still hasn't said how it may still use its patents against Hercules. IBM has only created more confusion. That approach all by itself shows a lack of good intentions and greatness on IBM's part.


• At the same time, IBM's entire original patent pledge and the two patents from the pledged list that IBM waved to TurboHercules are unimportant in the sense that we are talking about a pledge covering only about 1% of IBM's total patent portfolio, and only about 1% of the patents listed in IBM's letter to TurboHercules were pledged patents.
  
  You take 500 patents out of IBM's patent portfolio and there are still 50,000 or so other IBM patents that continue to be a threat to FOSS. The whole pledge was an IBM PR stunt and, given the small number of patents, a drop in the ocean from the beginning.
  
  You take the two pledged patents out of the list IBM of 173 patents (including applications) that IBM sent to TurboHercules, and 99% of the problem is still there.
  
  If Hercules infringed only a single one of those patents related to the mainframe CPU instruction set, it could no longer be used. It simply wouldn't be able to execute any significant mainframe software because every significant piece of software will typically make use of each machine language instruction somewhere in its code.
  
  So the actual patent problem here would essentially be the same even if IBM had issued the overdue apology and unequivocal clarification that it has failed to put forward.

Unless anything new comes up or becomes known concerning the pledged patents and IBM's approach to its pledge in general, I believe the time has come for the debate to move on and focus on what IBM will do with its unpledged patents. I realize that IBM is unwilling to give crystal-clear and reliable answers to pledge-related questions. That fact is obvious now, so we really need to focus on the actual threat, of which the pledged patents only represent a negligible part.

After so much discussion about 2 patents, what about the other 171?

IBM's defense clause that was never triggered

I had already explained in this post that there isn't any IBM defense clause that would ever have been triggered by TurboHercules. Hence, TurboHercules is still entitled to the benefits of the pledge.

But there's ongoing confusion. Just a few hours ago, someone commented on a previous post of mine and claimed that an "entity that has filed legal action against [IBM] is no longer protected [by the pledge]."

Another reader has, without posting a comment, challenged me to comment on the following quote from a senior IBM VP, a remark he made in a speech at a Linux event: "IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves."

IBM may have said that, but it has nothing to do with TurboHercules. It's a statement about the Linux kernel. Hercules isn't the Linux kernel and IBM's patent pledge doesn't even mention the word Linux. IBM's comment has no effect on the scope of the patent pledge. The pledge stands on its own. It doesn't contain anything that would say: "You have to view this pledge in the context of whatever some IBM person said somewhere about something that is at best remotely related."

The pledge even encourages people to print it out and keep it like a contract. That underscores it's a document that stands on its own. The pledge defines one -- and only one -- defensive scenario in which IBM would not want to be constrained by the pledge. That clause exclusively pertains to "any party
who files a lawsuit asserting patents or other intellectual property rights against Open Source Software."

So IBM wanted to ensure that it could retaliate against a patent attack on open source even with pledged patents. But what TurboHercules did -- the lodging of an antitrust complaint with the European Commission -- is anything but filing a lawsuit asserting patents or other intellectual property rights against FOSS.

What TurboHercules did doesn't trigger the exception provided for in the pledge any more than reporting an illegally parked IBM car to the police would.

Antitrust and intellectual property are totally different areas of the law and the European Commission doesn't pursue patent infringement. (It doesn't adjudicate lawsuits of any kind.)

There are only three scenarios in which someone can claim that TurboHercules triggered the defense clause:

• that person hasn't ever bothered to read the actual pledge (which is only one page, plus a patent list) prior to commenting on this issue


• that person doesn't know that antitrust and intellectual property are disparate areas of the law, which I've now clarified


• that person intentionally wants to fool the community (and there are some out there who aim to do that)

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TurboHercules' entire correspondence with IBM available online

On Tuesday I published IBM's most recent letter to TurboHercules, dated March 11, 2010. By now, the three letters previously exchanged between the two companies have also been made available (on the TurboHercules website). This is useful material to see what has happened and in which context.

In its first official reaction to the publication of the latest letter, IBM stated the following:

We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years.

Now that all of the letters are available, it's easy to demonstrate that the sentence quoted above is wrong. A few commentators, who were unfortunately misled by IBM's statement, suggested that IBM didn't threaten TurboHercules with patents but basically just answered a request for information. This fallacy can be dealt with very quickly.

In TurboHercules' first letter to IBM, TurboHercules inquired about a way to let customers run IBM's operating systems, especially z/OS, on Hercules. Neither the word "patent" nor the broad and general term "intellectual property" comes up. It's particularly easy to check because that document can be searched automatically with the PDF Reader.

Four months later, but still four months before the letter I published on Tuesday, IBM then replied with this letter. That document is not searchable because it's a digital image, but it's just one page.

The second paragraph of that letter acknowledges what TurboHercules really wanted to know:

In your letter, you ask whether IBM would consider licensing its operating systems for use on the TurboHercules platform in order to help TurboHercules SAS (Turbo) establish a commercial business.

The third paragraph then begins with the following infringement assertion:

First, you state that Turbo "implements the instruction set of IBM mainframes on Intel-based servers". We think that mimicking IBM's proprietary, 64-bit System z architecture requires IBM intellectual property, and you will understand that IBM could not reasonably be asked to consider licensing its operating systems for use on infringing platforms.

It's not too hard to interpret, but let me put it in colloquial terms to make it even clearer what IBM said: "You (TurboHercules) say you emulate our mainframe CPU on Intel-based computers. If what you (TurboHercules) say is true, then you infringe IBM intellectual property."

IBM asserted an infringement, not in a very specific form initially, but without a doubt, IBM brought up an "intellectual property" infringement assertion against Hercules, literally and proverbially, out of the Blue. IBM started to bully.

IBM used a very broad and general term. "Intellectual property" in connection with software can mean patents, copyright, trade marks, trade secrets, design patterns. The term "intellectual property" is so broad and unspecific that Richard Stallman, the founder of the software freedom movement, even rejects it entirely as a "seductive mirage".

Therefore, TurboHercules had no idea what exactly IBM meant. Considering that Hercules had been around for a long time without any complaints over any infringement, Roger Bowler was surprised in the sense that he couldn't see why his project would all of a sudden infringe any rights if no such claim had been made during all of that time (during which there can be no doubt that IBM was well aware of it; IBM had temporarily even recommended the Hercules emulator in one of its so-called Redbooks).

That's why Roger wanted to know more about this. So he wrote another letter to IBM, and the key passage for the patent issue is this one:

We also were surprised at the suggestion that our TurboHercules product - which merely relies on Hercules open source emulation software to run z/OS on Intel-based servers - might infringe certain IBM intellectual property. Hercules has been widely used in the development community, as well as within IBM itself, over the past ten years. Prior to receiving your letter, we were not aware of any claim that Hercules might infringe IBM's intellectual property. If you believe that the Hercules open source project infringes any IBM intellectual property, please identify it so we can investigate that claim.

Let me repeat a previously quoted one of IBM's gross distortions of the facts and compare it to what actually happened:

"We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years."

But there's nothing in TurboHercules's second letter that would enable IBM to reasonably say that TurboHercules was surprised that IBM had "intellectual property rights on [the mainframe] platform".

TurboHercules of course assumed that the world's largest patent holder would own mainframe-related patents. TurboHercules of course knew that a company the size of IBM would protect software copyright and other rights.

TurboHercules was, however, quite understandably surprised that a FOSS project that had been around since 1999 would now suddenly infringe rights (and not before), especially since this had not been under cover but IBM had been well aware of it all the time, about which there can be no doubt. And TurboHercules couldn't figure out what IBM meant by "intellectual property" given the vague nature of the term.

Everyone following this issue should look at how IBM tries to fool commentators and the FOSS community. IBM should admit what it has done.

To sum it up, the facts are:

• TurboHercules never said "intellectual property" or "patent" or anything like it before IBM said "intellectual property" and "infringing".


• TurboHercules, contrary to IBM's statement, was never surprised that IBM would own mainframe-related rights. They knew IBM would always do its homework.


• TurboHercules was surprised that an open source project started in 1999 and even mentioned in an IBM Redbook a long time ago would suddenly, in 2009, be the object of an infringement assertion.


• TurboHercules didn't, contrary to what a small minority of commentators believes, beg IBM to come forward with a patent list. IBM made an unspecified infringement assertion. In my opinion there was nothing unclear about the fact that an infringement was asserted. What was unspecified was the kind of "intellectual property" that was meant. Not even the category of "intellectual property" was clear after IBM's first reply.


• IBM then provided the patent list and repeated its infringement assertion with the letter I published on Tuesday.

IBM now tries to downplay its action of threatening by waving patents, saying that the patent list was only provided on request. Even if the thing about the request were true (which it is not), it would be a hostile, threatening act against a FOSS project. But as the exchange of letters undoubtedly shows, IBM brought up a patent infringement (without even saying clearly it was about patents, but that's what was meant) before TurboHercules ever inquired about it.

IBM told TurboHercules in its first letter: "Don't mess with us because we're armed and can kill you any moment." Of course, "armed" can mean lots of thing: a gun? a knife? a dagger? two or more different weapons? And TurboHercules was wondering: after a decade without any conflict, what's going on now? IBM then drew its gun. When asked, it said: "We didn't threaten with it. We were asked to show what we had."

Give me a break.

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Clarification of terminology: 'assert' vs. 'sue'

Since the discussion over all of this may continue for a while, I'd like to explain something once and for all, as as hopefully useful point of reference.

I see some commentators getting confused about what IBM was doing and how it related to what IBM had committed not to do. This is not only relevant in connection with the broken pledge (which as I pointed out in my previous post accounts for only 1% of IBM's total patent portfolio and also only approximately 1% of the patents with which IBM threatens TurboHercules). It's also important for the purpose of assessing how far IBM has already gone.

Let's be very clear on this one: "to assert patents" is a superset of "to file a lawsuit for patent infringement".

There are many who rush to IBM'S defense, mostly IBM-aligned people but also a few people whom I regard as usually very reasonable, who say that since IBM has not (yet) filed a formal lawsuit for patent infringement against TurboHercules, it has neither (i) broken its pledge nor (ii) done anything the community needs to be concerned about.

Let's start with the semantics and then look into both questions.

"To assert" is a very broad term, "to sue" is very narrow

The Free Dictionary provides a definition of the verb "to assert". In connection with rights, such as patents, it means to defend or maintain those rights. Filing an actual lawsuit is only the last resort if someone defends or maintains rights. "To assert" also includes earlier stages, such as calling someone to claim an infringement of rights. Or writing a letter to that effect. In other words, there are no formal requirements. It's a matter of common sense where an assertion begins.

By way of contrast, you cannot sue by calling someone or by writing someone a letter. To sue, you have to file a suit with a court of law. There's no way to stretch that definition.

The pledge was a commitment not to assert, not only a covenant not to sue

IBM's open source patent pledge was a commitment not to assert.

IBM wrote in that pledge: "IBM hereby commits not to assert any of the 500 U.S. patents listed below [...] against [...] Open Source [...]"

So this commitment was much broader and further-reaching than a mere covenant not to sue would have been.

No one forced IBM to say "commits not to assert". They could also have said "enters into a covenant not to sue for infringement of".

In 2005, IBM wanted to get the goodwill of the community. If IBM had only said "enters into a covenant not to sue for infringement of", people would likely have asked: You won't sue, but which other bad things do you intend to do?

IBM's letter to TurboHercules was not a lawsuit because that term is narrowly defined, but it was an assertion because that term is broadly defined and IBM has to honor its own words.

I know that some people say that IBM actually just answered a question, and that the infringement they asserted was only hypothetical. I'll deal with some of those views some other time. In this one I just wanted to highlight that IBM made a broad promise and now wants it interpreted narrowly.

I repeat myself but let's never lose sight of the fact that IBM only pledged 1% of its patent portfolio and only 1% of the patents with which IBM threatens Hercules are pledged patents. At some point we must all move on and talk much more about the other 99% of the issue (the non-pledged patents), but that one percent of the issue has a lot to do with IBM's credibility and I still see some people discussing that aspect. Both aspects are important, although in different ways.

Why waving with patents is bad enough

It's a black-and-white kind of perspective to say that as long as IBM hasn't formally sued, things are fine.

It would also be binary thinking to say that IBM doesn't want to destroy Hercules in its entirety, so things are fine.

IBM probably doesn't mind people using Hercules to acquire mainframe-related knowledge. The mainframe sectors suffers from a severe lack of trained professionals. Hercules provides a free-of-charge way to learn about mainframe technology on a cheap PC. IBM would rather control that field with its own emulators or other offerings, but this is not where Hercules really hurts them too much.

It's also possible that IBM doesn't mind software developers using emulators for development purposes. Other platform vendors are also quite liberal in that kind of context. After all, every additional piece of software written for the mainframe platform benefits IBM. I'll end this paragraph like the previous one: IBM would rather control that field with its own emulators or other offerings, but this is not where Hercules really hurts them too much.

What IBM definitely doesn't want Hercules to do is foray into the field of productive use. That's where IBM wants to force its customers to use IBM hardware - and only IBM hardware. There's an exception for the use case of disaster recovery in the z/OS licensing terms that suggests are slightly more liberal approach to that one. However, they could change those terms anytime, and what the z/OS licensing terms (obviously) don't address is whether IBM will refrain forever from using patents against disaster recovery solutions.

So what I believe IBM is doing here is using its patents to intimidate. They have sent out a signal that they draw the line where their core business interests are concerned.

They want to restrict and confine Hercules. "If you stay in the kids' corner, we'll probably ignore you. But once you leave that corner, you're in serious trouble."

In order to do so, they will do whatever they can: be it the z/OS licensing terms or be it patents.

Anyone who thinks that intimidation with patents can be accepted as long as no lawsuit gets filed should ask themselves this simple question:

Imagine you're having a disagreement with someone and that person draws a weapon and an ammunition belt with 173 bullets, would you also feel that everything's fine because this behavior is not identical to firing a shot?

IBM confused and confusing - but definitely still hostile

Big Blue Confusion.

After Tuesday's revelation, the media wanted to know from IBM where it stood concerning the patent pledge.

IBM scrambled to come up with an answer. Late on Tuesday IBM issued a statement that was contradictory in itself. On the one hand, they said they stood by the patent pledge they made five years ago. On the other hand, they came up with some theories that weren't in the original pledge. In other words, if they were going to stand by anything, it would be something fundamentally different from the original pledge: something that would give them the unilateral right to decide which individuals and companies are deserving of the benefits of the pledge, and which ones are not.

eWeek was first to publish IBM's reply late on Tuesday. At the end of this article, you can find a whole paragraph that talks about how IBM might consider TurboHercules not to qualify for the benefits of the pledge.

Then both the Financial Times and the Wall Street Journal pointed out that the concept of "qualified" simply wasn't in the original pledge. The Wall Street Journal asked: "If TurboHercules doesn’t qualify, who does?" The Financial Times found that "[e]ven under a very generous reading of the case, IBM is stretching the definition considerably to defend its turf. There’s a clear message there for any other open source company rash enough to try to take on Big Blue with its own weapons."

In other words, the world's two leading financial papers, independently of each other, didn't put any stock into the most essential part of IBM's statement.

Eric Raymond, an open source luminary often referred to by his initials ESR, wrote in his blog that IBM was "digging itself in deeper" with its "retroactive attempt to deprive the pledge of actual effect" since the only criterion that the original pledge established was that a project's license had to be an open source license. ESR wonders "when the adult supervision at IBM is going to step in."

When ZDNet asked me what I thought of IBM's reply, I also pointed out that the word "qualified" was not in the language of the pledge. "The problem is that 'qualified' becomes an arbitrary and discriminatory decision on their end."

Actually, it's not only the word "qualified" that IBM used and that wasn't in the actual pledge. They also talked about TurboHercules' "motivations". That's a little bit of an Orwellian notion... IBM checking on what we think and feel and then exercising its discretion as to whether it stands by its promises or not.

IBM may solve 1% of the problem with a 180-degree turn

Ultimately, IBM may have realized that it couldn't get away with totally baseless redefinitions of things it published five years ago. So the next episode of the story: Jim Zemlin, the president of the IBM-sponsored Linux Foundation, published a statement yesterday that is signed by Daniel Frye, VP Open Systems Development, IBM Linux Technology Center.

In that statement, the part of the original pledge that refers to who can benefit from the pledge is quoted again.

What is not mentioned is that there is one and only one exception in the original pledge: if someone asserts patents or other intellectual property rights (copyright, for instance) against open source, IBM reserves the right to hold its patents against him. Again, that is the only exception provided for by the pledge. And TurboHercules has not asserted any patents, copyrights, trademarks or other intellectual property rights against anyone.

Some are getting confused because TurboHercules lodged a complaint with the European Commission over the anticompetitive impact of IBM's behavior. Would that mean TurboHercules sort of attacked and could no longer benefit from the pledge? Absolutely not. The pledge only talked about an intellectual property rights attack against open source. It didn't talk about reporting to the police an IBM car that is illegally parked somewhere. Reporting illegal parking simply isn't an assertion of intellectual property rights. Nor is the lodging of an antitrust complaint.

Getting back to the IBM letter, it ends with the promise that "IBM will not sue for the infringement of any of those 500 patents by any Open Source Software."

Actually, that concluding statement is again a redefinition of what IBM originally promised. The original promise was not just that IBM would not sue for patent infringement. It was that IBM would not assert those patents. That is an important difference because the original promise "not to assert" is a broader one than now saying "will not sue for the infringement". The letter IBM sent to TurboHercules was certainly an assertion, even though they haven't sued so far.

Jim Zemlin (Linux Foundation) acting as His Master's Voice

More importantly, Jim Zemlin, who published and commented on that IBM statement, is totally wrong to say that ”[f]ortunately all of us can breathe easy" because this is anything but meaningful progress on the actual issue.

All that has happened is that IBM has put out inconsistent statements and still has not said clearly and affirmatively that TurboHercules meets the one and only criterion defined in the pledge (the software is under a license that was formally recognized as an open source license at the relevant point in time, and still is, of course). Nor has IBM said clearly and affirmatively that TurboHercules has not done anything that would be related to the one and only exception the original pledge defined (asserting IPRs against open source).

More than anything else, IBM appears confused and with its own confusion it's confusing, maybe deliberately trying to confuse, everyone else.

This is now another part of IBM's business - now open source, previously mainframe - making a statement. Do we - the non-IBM part of the world - now have to figure out which division of IBM calls the shots? So far there are actually very strong indications that those open source people at IBM don't have much to say compared to their mainframe counterparts.

But even if this confusion were to be resolved with an unequivocal and definitive statement by IBM's CEO himself, it wouldn't mean, contrary to what Jim Zemlin says to please his biggest sponsor, that ”[f]ortunately all of us can breathe easy".

Those are 500 patents. What about the other 50,000 or so that IBM owns? Open source is safe from 1% of the threat, not from 99%?

The patent pledge was a drop in the ocean from the beginning.

Out of the 173 patents (67 of them in the application stage) IBM asserted against Hercules, 2 would be removed from the list. That would also just amount to 1% of the issue. 99% of the problem would still be there.

If Hercules infringed only a single one of those patents related to the mainframe CPU instruction set, it could no longer be used. It simply wouldn't be able to execute any significant mainframe software because every significant piece of software will typically make use of each machine language instruction somewhere.

They just need one patent out of those 173 (or 171, if the two pledged ones are subtracted) to shut down Hercules, if that one patent is indeed infringed.

IBM still hostile, dangerous and utterly hypocritical

The bottom line is that IBM continues with the strategy that was apparent five years ago with the patent pledge. Simply put, IBM wants to fool the FOSS community. It's hypocritical. It portrays as a generous gesture something that doesn't make FOSS developers and users safer in any noteworthy way.

IBM still has hostile intentions because it wants to protect its mainframe turf no matter what. IBM is still dangerous for all of FOSS because no one would be safe from IBM in areas where IBM has a business interest in keeping competitors out. And worse than that, if IBM gets away with this, think of what other big patent holders might do.

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