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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. :)
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).