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IBM Breaks Patent Pledge; Breaches the OSS Community's Trust (Updated)

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For decades, IBM has been the patent king and yet, in most cases it has been a friend to open source.  The founding of the Open Innoavation Newtork (OIN), with IBM's backing, was a major step towards patent freedom for the Linux community.  IBM has also made "patent pledges" that provide a list of patents that the company says it will not enforce against open source software vendors.  However, a letter to TurboHercules SAS was recently published warning the open source company that IBM will enforce many patents, including two (5613086 and 5220669, #83 and #106 in the letter) that were part of a 2005  non-enforcement patent pledge.

TurboHercules SAS was founded last year to offer a disaster recovery solution for companies that use the IBM mainframe.  The startup's technology is based on the Hercules project, which is eleven years old and has thousands of users worldwide (including IBM people).  It is a mainframe emulator for running IBM's z/OS and related applications on off-the-shelf hardware.  TurboHercules proactively contacted IBM when they wanted to see if their disaster recovery solution would face patent problems.  IBM responded by turning down the request and accusing TurboHercules of patent infringement with a "non-exhaustive" list of 106 IBM patents and 67 pending patents that IBM says are used in TurboHercules' technology.

NoSoftwarePatents founder Florian Mueller raised the red flag on this pledge-breach by IBM.  He not only disputes the two patent claims that IBM pledged never to use, but he also argued against enforcing the rest:

"The patents in question, the largest group of which covers the IBM mainframe CPU instruction set, are not specifically connected to what the TurboHercules company is doing beyond the Hercules code base.  ther patents that IBM brings into position here cover general address management and virtualization/emulation functionality that would affect many other open source projects as well."

The TurboHercules software is licensed under a more obscure, but OSI accepted Q Public License.  That license may not be accepted by the wider free software community, but the license is not what's at issue for IBM.  When IBM backed Linux and the OIN, which was formed to make its Linux patents available to any company (that agrees not to assert its patents against the Linux system), royalty-free, IBM was seen as open source-friendly.  They also gave a huge nod to open source when they dumped their own web server for Apache's HTTP server.  However, their recent actions against TurboHercules paint IBM as an opportunist who supports OSS when it suits them, and fires its massive patent portfolio at the projects that don't help them.

This is nothing new in the software business and IBM certainly isn't the only offender, but what's especially dirty is the fact that they pledged not to enforce two of the patents that they used to attack TurboHercules.  Even though IBM's got 104 (maybe more; how do they keep track of them all?) other patents they can hit TurboHercules with, it still represents a breach of trust with the OSS community.  A community that, perhaps, should have never trusted their pledges in the first place.

TurboHercules has already lodged an anti-trust complaint with the European Commission.

(4/7/10): IBM  defended itself in an interview with eWeek arguing that the pledge only applies to companies that don't compete with them.  However, the original pledge simply states that it applies to open source.
In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies. We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules' motivations.
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