Sunday, April 11, 2010

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?