IBM Claims Software Patents Promoted Open Source Software?

from the but-how? dept

Tue, Sep 8th 2009 5:38am — Mike Masnick

The folks over at Slashdot point us to an interesting tidbit buried in IBM's amicus brief for the Bilski case, where the company claims that software patents helped drive open source software development:

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.

The original report linked above conveniently drops the "on a patentee's terms" which makes for a better story, but is a bit misleading. It's that clause that explains what IBM means by this claim, though it shows absolutely no substantiation of the claim, whatsoever. And that's because even with that clause added back in, it makes no sense. At all. Yes, software patents may make some developers more willing to share code with others... but that's got nothing to do with open source development or the growth of open source software. The situations where a patent makes a developer more comfortable showing source code are clearly cases of proprietary software, where the developer/patent holder is worried about the software being copied. With open source software, there's no such "worry" because that's actually a feature of the system.

So why does IBM simply get to make stuff up in a filing for the Supreme Court?

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Filed Under: bilski, open source, patents, software
Companies: ibm

18 Comments

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Richard, 8 Sep 2009 @ 5:51am

Can't make my mind up about IBM
They used to be the Great Satan (back in the old days - before Microsoft). Then Gates gave them a bloody nose (more by accident than design) and they seemed to become a reformed character, focusing on customer relationships (CWF-RTB). This seems to be a setback in that process - strange.
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Chronno S. Trigger (profile), 8 Sep 2009 @ 6:05am

I have to agree with IBM
"software patents helped drive open source software development"

I'll agree with that. Software patents pissed off so many programmers that they switched to open source just to get away.
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imbrucy (profile), 8 Sep 2009 @ 6:22am

Re: I have to agree with IBM
That would be the only explanation that makes their statement make any sense.
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Free Capitalist (profile), 8 Sep 2009 @ 6:24am

Re: I have to agree with IBM
+1 insight

Especially early on, some developers were so pissed off, the sight of someone implementing proprietary software caused direct aggro. Still holds true for many.
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Overcast (profile), 8 Sep 2009 @ 6:27am

LOL!!!! IBM!!!!

HEY IBM! What about Microchannel Architecture - I'm SO GLAD it's in common use today because you had it patented - that helped innovation alright - it helped *others* innovate something OTHER THAN MCA - like ISA, PCI, etc.

Oh and don't forget that wonderful OS called "OS/2" - IBM's always been 'on top' of things.

I think it will go down in historical record that IBM was certainly one of the top ten companies that screwed up their own potential and made some of the worst business decisions of all time. I mean - they had the hardware market in their lap - until they got greedy with MCA.
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Designerfx (profile), 8 Sep 2009 @ 6:31am

bingo
I questioned this over the weekend and the best slashdotters could give me was "IBM's in the business for themselves only" which explains nothing.
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Pete Austin, 8 Sep 2009 @ 6:45am

Patents hurt proprietary code more than open source - benefiting the latter. For example it's rarely worth suing open source projects because they don't have much money.

This sort of argument is deeply cynical, like claiming AIDS is a benefit because it reduces the danger of famine.
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Designerfx (profile), 8 Sep 2009 @ 6:47am

friends close, enemies closer
that's how I've felt about IBM. As soon as a company *ever* drifts into the realm of raising eyebrows, you should never expect a true change. Leopards can't change their spots, etc.

Once corruption is root in a company in some form, be it lack of ethics, or otherwise, you have to expect it will continue even if the source is gone.

Examples: most industries overall: apple, ibm, intel, ms, GM (cars and the cereals), at&t, rogers, time warner, comcast, best buy, the list goes on and on. Heck, those are some of the *worst*, but far from the only. Is it really any surprise? How many of those companies do not do things on a regular basis that are totally illegal or basically are detriments to society at a benefit for themselves?

I mean, we live in a society where it is legal for a corporation (but not an individual) to take a bribe. Nothing stops the corporation from paying the individual.
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NullOp, 8 Sep 2009 @ 7:33am

IBM
Having been in the business since before the turd known as software patents, I agree with IBM in the idea of patents promoting open source software.
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Anonymous Coward, 8 Sep 2009 @ 8:20am

Microsofts operating system is closed source and it's also proprietary. So intellectual property does nothing to help reveal source code. The only reason to have a patent on open source software is if you know the source code is something obvious and you want to restrict others from using obvious functions so you want to tell them what functions they may not use, hence giving your product a government granted unfair competitive advantage just because you can't compete in the free marketplace.

One of the reasons apple fell behind IBM (and PC's) is because IBM didn't do a lot to enforce proprietary rights on their hardware, where as apple/MAC did, and PC's allowed anyone to develop operating systems and develop software on the operating systems. Hence people developed Linux and all sorts of apps and operating systems which built value into the hardware and mac/apple fell behind.
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Yohann, 8 Sep 2009 @ 9:27am

Makes sense to me
A lot of open source applications spawn from proprietary software. If you look at email programs, the most dominant in the Windows scene has been Outlook for a long time. Other email programs have worked in the past that are open source (Mutt, Pine, etc.) but none have that graphical interface like Outlook. There was no open source equivalent or even a good free email program. In comes Thunderbird. It has almost the same look, the same feel, the same features. Add the Sunbird plugin, and now you have a free Outlook clone.

MS Office was a very prominent productivity package for a long time. Sure, there was StarOffice and KOffice for UNIX and Linux, but none really had the development team like Microsoft. That was how OpenOffice.org began (or actually spawned from StarOffice). Now there's OpenOffice which is open source.

This has been seen lots of times with FTP programs as well. If there is a proprietary program that costs a lot of money and performs a task many need, you can bet someone (or team) will come up with an open source alternative.
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senshikaze (profile), 8 Sep 2009 @ 10:38am

Re:
I disagree with your first sentence, but your last was hilarious.
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Anonymous Coward, 8 Sep 2009 @ 10:55am

It helps to read the entire brief before cherry picking a minor statement in a footnote that is in part intended to illustrate one of many reasons why business method patents such as in Bilski should not be eligible for protection under our patent laws. It is also useful to note that this statement is not an integral part of IBM's presentation to the court.
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Mike Masnick (profile), 8 Sep 2009 @ 11:38am

Re:
It helps to read the entire brief before cherry picking a minor statement in a footnote that is in part intended to illustrate one of many reasons why business method patents such as in Bilski should not be eligible for protection under our patent laws. It is also useful to note that this statement is not an integral part of IBM's presentation to the court.

Which is why I noted it was "buried" in the filing. But, um, that doesn't address the point, does it? Just saying "it's not integral" doesn't explain why such an outright lie is in the filing.
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Anonymous Coward, 8 Sep 2009 @ 3:04pm

Re: Re:
Looks to me as if the time is ripe for techdirt to file an amicus brief with the SCOTUS drawing the "lie" to its attention.
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Matt (profile), 8 Sep 2009 @ 4:35pm

Re:
OS/2 was awesome. I loved it. It worked, fast and well. Like QNX, but slightly longer lived.

Unfortunatley, only slightly.
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Anonymous Coward, 8 Sep 2009 @ 9:36pm

Re: IBM
Ive also been in the business since BIO (Before Intelectual oppression) and I would like you to clarify that statement. Can you give ONE example?
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To matt, 8 Nov 2009 @ 7:39am

Re:
OS/2 wasnt that awesome.....linux rockz alwayz.....
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