IBM claims patents promote open-source love
Hits factory spin
Open source and software patents are generally regarded as two things that go together like peanut butter and a punch to the face*.
Open-source advocates talk of vague, badly written US patents lurking in the system, waiting only to pounce on unsuspecting devs and condemn them to 1,001 years litigation. Open sourcers actively fear patent trolls, and many go through great pains to avoid getting jumped by them.
But a recent nugget buried in IBM's amicus brief for the Bilski case takes a novel slant on the issue. Big Blue told the US Supreme Court that software patent lockdowns are actually the secret to open source's success.
Here's the quote (actually a footnote in the paper) that has some internauts hot under the collar. The emphasis here is our own:
"Given the realities that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms - which has fueled the explosive growth of open source software development."
To follow the dots here; patent protection lets the creators of proprietary software share their source code without the fear of getting copied, which allows open source - which is entirely based on relaxed or non-existent copyright restrictions - to prosper… somehow.
It's a strange, unsubstantiated comment coming from a company that's clearly working both ends of the argument. After all, IBM is each year awarded more US patents than anyone else around - all the while being one of the industry's biggest backers of Linux.
Perhaps IBM means the US patent system promotes open source in the same way a tour of the slaughterhouse promotes vegetarianism.
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*Alternatively: a colonoscopy and jelly.
"A patent protects the invention itself."
Yes. I know.
"Here, the invention would be the algorithm,"
I disagree. "Algorithm" is just a fancy way of saying "Math(s)" ... which existed long before humans learned to count stuff ... or indeed, before humans existed.
"and the expression is the code that implements the algorithm."
The exact method of implementing that bit of math(s) in any given computer language is what is copyrighted as soon as it is published.
"If the algorithm is patented, you need a license from the patent owner in order to create an implementation."
Except there is a Universe full of prior art, and thus it's not patentable. Yes, I know, the current US patent system says otherwise. I disagree, and fully expect this to be changed before my life is over ... We'll see :-)
"Your copyright prevents others from legally duplicating your code without your permission."
Correct. And in my opinion, that should be all that is necessary.
Why they are speaking the truth
Firstly, don't forget that the *primary* protection of the openness of open source is copyright law: open source licences use copyright law as their main tool.
Secondly, IF a patent holder is a Good Guy, the patent can be licenced in such a way that it can be freely used in open source software. IBM has done this, for a whole bunch of patents.
But those patents are not freely licenced for proprietary software written by IBM's competitors.
If the patent holder is a Bad Guy, of course, the patent can be used to bugger up the open source software. So far as I know, IBM has never done this.
Disclosure: I used to work for IBM.
IBM's Invention/Patent Absurdity
IBM actually develop micro-structure hardware & the patents on these forms would be much of IBM's future-proofing & fair enough if another company's development has the first tier already designed for them. The building of these micro-structures, lower striates & the similar are expensive dev. That IBM give away their software equates more to their lack of saleability than anything else so build up a clientèle base by giving it away then eventually charge for it.
That idea is fine but they'll never make any money out of it. IBM also buy up as many patents as possible to future-proof against M$ or Sun Micro which has hurt them in the past; ie M$ succeeding with Windows & IBM missing its own boat. It's not so much about screwing the open-sourcers but intervening when someone makes a huge pay check off IBM's coattails. They don't care about a million or so which isn't even the last day's anything to them but big windfalls that are using their invention are not to be ignored. Can you blame them here & wouldn't you like the payoffs?
I doubt that OSS is doing anything but helping IBM's future-proofing with free dev but we won't be making big money any time soon with IBM assisting us. They do offer some protection from M$ & from past behaviours no-one in their right mind would trust M$. You could probably paint IBM with a similar brush except that so far they've not seemed to be interested in hurting the OSS movement unlike M$.