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IBM (NYSE: IBM) announced that it will not use its patents against Linux, and it encouraged other software companies to make the same vow.
As the owner of 60 patents on which the Linux core might infringe, IBM could wreak havoc on Linux if it chose to do so. The new promise, delivered at LinuxWorld, emphasizes the company's commitment to open source.
In a speech at the conference, however, IBM senior vice president Nick Donofrio said that in the future the company could be "forced to defend" itself through patent enforcement.
Patent Filing
Donofrio's comments were in response to an earlier statement by Open Source Risk Management, a group that conducts research and analysis of patents that could affect the core of Linux.
The organization identified several patents owned by large companies such as IBM that have Linux-based strategies. A total of 283 patents owned by a variety of companies might infringe on the Linux kernel.
Donofrio added that collaborative innovation would play a significant role in the future of IT, Linux, grid technology and the Internet. He noted that countries will have to find the right balance between harnessing that collaborative power and protecting intellectual property, and that IBM wants to help strike that balance.
The timing of IBM's announcement is notable, said Steve Frank, a partner in the patent and intellectual property group of Boston-based law firm Testa Hurwitz & Thibeault. He said that technology companies are more protective of intellectual property concerns now than in the past.
By promising not to pursue patent enforcement, IBM allayed anxiety in an open-source community that has seen a surge in lawsuits involving Linux.
"Judges didn't used to like patents for intellectual property," Frank said. "Now they're encouraging their use. They see them as a way to protect innovation, which means you're going to see a trend toward lawsuits that involve them."
Comfort for Germany?
The announcement might also help IBM persuade the city of Munich to follow through on its Linux plan.
Because of concerns about software patents, the city postponed a plan to migrate to the open-source operating system. Given that Munich plans to shift 14,000 desktops to Linux by 2006, a patent threat would be catastrophic, said Munich alderman Jens Muehlhaus.
Some open-source advocates have posited that the halt is politically motivated, with Muehlhaus's Green Party exploiting the issue to influence government support for new patent laws in Europe.
Although it has stopped the migration to open source for now, Munich has noted that the situation could change.
Out of Court
There are other reasons for IBM's nonenforcement announcement, said Yankee Group analyst Laura DiDio. For one thing, it's already spending a lot of time in court.
"With SCO and other suits, IBM has its hands full," she said. "They don't need to add to their lawsuit load right now."
A more compelling reason might be that IBM is investing heavily in Linux services.
According to Gartner (NYSE: IT), IBM is the top vendor of systems running Linux, with a 32.6 percent share of the Linux market. In comparison, HP (NYSE: HPQ) has 29.1 percent. In June the company opened a Linux Center of Competency in Bangalore, India. Others such centers are located in China, Germany, Russia, Japan, Brazil and Austin, Texas.
Given IBM's heavy investment in Linux initiatives, a patent assault on open source would be a curious move, DiDio said.
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