IBM and TurboHercules: The Patents, the Pledge and the Blogosphere Brawl

No sooner did the Novell v. SCO case draw to a close than another one seems to have come to take its place.

This time, of course, IBM is the big name involved, while TurboHercules, a French company that makes a mainframe emulator, plays the little guy. At issue are Hercules, the open source mainframe emulator; 173 IBM patents; IBM’s 2005 patent pledge, which apparently covered two of them; and TurboHercules’ formal complaint with the European Commission. Plus the question of what a promise means, and whether there should be patents.

Confused yet? You’re not alone.

‘Who Is Suing Whom?’

“IBM is using patent warfare in order to protect its highly lucrative mainframe monopoly against Free and Open Source Software,” wrote FOSS advocate Florian Mueller in response to the case.

On the other hand, “Who is suing whom? It’s not IBM, folks,” asked Groklaw, calling Mueller’s assertions nothing more than FUD. “The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge’s safety umbrella?”

Then again: “I’ll bet IBM will apologize for accidentally listing the 2 patents that it swore it would not,” wrote Jazz-Masta on Slashdot, meanwhile. “This will leave the creator with 171 patent infringements and nothing to complain about.”

Alternatively: “Couldn’t be that a company as large as IBM might have multiple departments/divisions that don’t really know what the other is doing,” chimed in DarKnyht. “Nope, just an evil corporation being [hypocritical].”

‘Kind of a Dick Move’

And another view: “I don’t think this is unreasonable for IBM,” asserted UnWeave on Digg. “In fact, I think it’s kind of a dick move of TurboHercules to go after some of IBM’s market share with some legal loophole. What did they think was going to happen, anyway?”

On LXer, meanwhile, the topic brought on a veritable virtual brawl that extended across not just one, not just two, not just three but four threads.

Fearing for her safety should she try to intervene, Linux Girl headed down to the blogosphere’s Big Blue Penguin Cafe for some more insight.

‘A Bit Naive’

“From the information that is publicly available, it is my opinion that [TurboHercules Chairman] Roger Bowler is being a bit naive,” Slashdot blogger Kitson Kelly opined.

“From what I can read, Mr. Bowler developed an open source emulator called Hercules,” Kelly explained. “He then decides to set up a commercial enterprise to profit off of this open source software. He asks IBM to allow people to license IBM’s operating system on his emulator. IBM responds essentially ‘no’ and says, by the way, the emulator infringes IBM’s intellectual property rights.”

In focusing on the two out of 173 patents that were covered in IBM’s 2005 pledge, Bowler and the Hercules community “make a mountain out of a molehill,” Kelly added.

‘Rightfully Concerned’

IBM’s letter doesn’t state that the company plans to pursue legal action, nor does it state that it is exercising its patents, he added. Rather, it “is simply trying to prove the point that Hercules contains IBM IPR and that Mr. Bowler should really reconsider his request to allow IBM to license z/OS on his software.”

IBM, then, “is rightfully concerned that a commercial enterprise is attempting to make money off of their IPR,” Kelly asserted.

Any comparisons to the SCO case, meanwhile, are “disturbing,” he added.

‘IBM Clearly Has Rights’

“SCO was asserting rights they didn’t have on something that didn’t infringe; IBM clearly has rights to z/OS and the z/390 hardware,” Kelly pointed out. “The Hercules project obviously contains processes and technology that is covered by IBM’s IPR. For Mr. Bowler to state otherwise is either total naivety or unwise business practice.”

One result is that “IBM now will have no choice but to ensure that this comes to a conclusion,” he predicted.

“I really wish TurboHercules hasn’t picked a fight with IBM by launching that antitrust action,” Montreal consultant and Slashdot blogger Gerhard Mack agreed. “Expect this patent fight to be one prong in IBM’s goal of crushing them.”

‘Software Patents Are Weak’

IBM has worked “too hard and too long” to help build FOSS for its commitment to be questioned, blogger Robert Pogson told LinuxInsider.

“IBM’s mainframe business is still very important to them and I would expect them to use the lever of patents to maintain dominance in the field,” he added.

Of course, “software patents are weak, so I doubt that issue will go far,” Pogson predicted. “I fully expect SCOTUS will give them the boot this year or next. They make no sense.”

‘Patents Are Desirable’

Alternatively, “patents per se aren’t the issue: they are desirable,” Slashdot blogger Bill Pickett asserted. “What is undesirable is the haphazard way software patents are currently approved by the USPTO. Obvious things are granted to the detriment of the entire industry and then the business surrounding patents themselves are not very compatible with Free and Open Source software.”

If there must be software patents, “they should be for a shorter duration than physical patents,” he added. “A tractor doesn’t change much over 20 years, but computing seems to be turned completely over every 10 or so.”

‘The Patents I Saw Were Hardware-Specific’

Two points stand out in all this for Slashdot blogger Barbara Hudson, who goes by “Tom” on the site:

1. “IBM was aware of, used and even wrote about the emulator”; and 2. “An emulator is just that — an emulator. It doesn’t interact with the underlying hardware in the same way as the original z/OS because the underlying hardware is different,” she noted.

The first point “brings up the doctrine of laches with respect to claims of infringement,” Hudson pointed out.

Regarding the second point, meanwhile, “a patent provides a specific implementation of a process,” Hudson asserted. “If the process is not implemented in that fashion — and an emulator on different hardware can’t be, because the hardware support isn’t there — it’s probably not infringing.”

If IBM had patented not just the instructions, but methods of emulating those instructions on different hardware, “they’d have a point,” she concluded. “The patents I saw were hardware-specific.”

‘Emulators Have Been a Gray Area’

Of course, the technology in question is also a significant factor, Slashdot blogger hairyfeet pointed out.

“This is probably a case we should welcome, because emulators have traditionally been a ‘gray’ area with regards to legality,” hairyfeet told LinuxInsider. “Just look at all those Chinese PMPs that play NES games — are they legal? Who knows. I’m sure that Nintendo, like IBM, would say ‘no,’ but then again according to the RIAA ripping songs to your iPod isn’t legal either — that is why we have the courts.”

As machines increase in power, emulation “will become trivial,” hairyfeet predicted. “The question of whether we will be able to use that insane horsepower to emulate other machines should be decided by the courts now.

“Personally, I’m all in favor of emulation because of the new life it can breathe into programs,” he added. “And while I can understand why IBM wants to kill emulation, they may be cutting off their nose to spite their face.”

After all, “how many developers have IBM mainframes lying around to code on? Not many, I bet,” he concluded. “Thanks to emulators you can write code for dozens of OSes and architectures while only having a single x86 box.”

Promises, Promises

Then, too, there’s the question of how much corporate patent promises are worth, Slashdot blogger Eldavojohn told LinuxInsider.

“Are these promises or pledges legally binding contracts between you and the company? I think the answer is ‘no,’ but that the larger companies want to make it look that way,” Eldavojohn explained.

Microsoft’s Community Promise “at least uses the word ‘irrevocably’ to assure open source developers” that they can start coding to those standards and patents, he noted.

Little Better Than a Pinky Swear?

With the wording in IBM’s pledge, on the other hand, “it’s clear that a ‘legally binding’ PDF — still hosted on IBM’s site, mind you — is little better than a childhood pinky swearing ceremony,” Eldavojohn said.

It’s up to open source developers to decide whether or not to believe these promises when we start coding, he added.

“Otherwise, you could find hundreds of man-hours wasted or — worse — end up at the receiving end of legal action,” Eldavojohn concluded. “After this display by IBM, I would opt to simply invest my time elsewhere.”

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