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IBM Has 'No Intention' of Using Patents Against Linux
bendelo writes "In his keynote address on Wednesday at LinuxWorld, IBM Senior Vice President of Technology and Marketing Nick Donofrio assured the Linux nation his company would not assert its formidable patent portfolio against the Linux kernel and strongly advocated others to promise the same. This comes following an independent study by insurance firm OSRM who revealed this week that the Linux kernel might use up to 283 patented methods. This seems a smart move by the Big Blue to help counter the FUD going around." A zdnet.com.com story has a response from Bruce Perens, who basically says he wants to see it in writing. :)
I consider ideas to be real innovation, and they are not always easy. However, in a sense I agree with you. There is a short supply of implementations, but an abundant supply of ideas. U.S. law has not seen fit to make ideas patentable for this very reason. Since academics and others gladly publish ideas without the need for a temporary monopoly, you do not "promote the Progress of Science and useful Arts" by granting patents.
For this reason, abstract ideas, mathematical algorithms, and their embodiment in computer software have never been statutory material for patents, erroneous rulings by lower courts (contradicting the US Supreme Court) notwithstanding. Interestingly, this means that if the EU ratifies software patents, they will be the first political entity where such patents are truly valid.
(Of course, don't take this as legal advice. To defeat software patents you would have to get the US Supreme Court to take another case, which they haven't done since 1981.)
No. Probably you refer to section 7 of the GPL,
which states that if some parts cannot be freely
distributed (e.g. due to patent encumberance),
then you are not allowed to distribute the
GPL work at all. So, this means IBM couldn't
distribute that GPL work it sues about, but it
can very well sue, *and* continue to distribute
other, unrelated, GPL works.
The problem is that IBM is *not* distributing
Linux themselves; they make their applications
work with SuSE and RedHat, but they only
redistribute their own code (GPL or proprietary),
relying on SuSE and RedHat to distribute the
regular distro stuff (specifically not to be
vulnerable to lawsuits related to possible
"dirty" IP in Linux).
Disclaimer: I do not work for IBM.
If IBM later reneged and sought to enforce these patents, I would argue promissory estoppel. If you make a promise not to pursue a legal claim, and people take harmful reliance on it, then you are barred from later bringing these claims.
A NYC lawyer blogs. http://www.chuangblog.com/
Disclaimer: I am a lawyer but I don't play one on TV.
I doubt that promissory estoppel would apply in this case for two reasons. Firstly, IBM are making the claim to the linux community as a whole which we can assume is very large. Therefore, it can be assumed with some assurance that some part of the community are unaware of this promise and should act as though the promise was never made -- don't infringe on patents. The portion of the community who are unaware of the promise would be open to prosecution at least and it is arguable that the community as a whole would be liable too.
Secondly, promissory esoppel only applies is the promise is "reasonable". In this case, it is hardly reasonable to expect IBM to not prosecute in the future because their primary goal, by law, is to maximise profits for their shareholders. If it becomes apparent that brandishing their patent lawyers against the Linux community is a profitable action, then they are compelled to do so.
These nebulous scenarios can be avoided by incorporating "Linux" and asking IBM to draw up a contract, officially liscensing these patents for use in the kernel. However, by doing this you would also be creating a body which would attract lawsuits from other quarters. The best thing to do in this situation (and this my professional advice) is to keep the community as it is, treat IBM and the other corporations who seem to be playing nice as potential threats, and finally hold our breaths. (You can do the latter incidentally even if you aren't a well endowed woman with a lisp).