Friday, April 30, 2010

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Some already outdated statistics on IBM's corporate website talk about an "active" patent portfolio of 26,000 U.S. patents and over 40,000 worldwide.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.

If you'd like to be updated on patent issues affecting free software and open source, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.