by Maureen O’Gara
There’s simply no nice way of putting this. IBM is an Indian giver.
To prevent the commercialization of the long-standing open source project Hercules – which might put some of its mainframe revenues at risk since Hercules is a mainframe emulator – IBM has suddenly claimed – out of the blue – that Hercules infringes at least 173 of its US patents or patent applications – including – get this – patents that it pledged the open source community could use without fear of infringing in 2005.
The “non-exhaustive” list of the 106 patents and 67 patent applications that Hercules allegedly violates fills nine pages of a letter that IBM’s mainframe CTO Mark Anzani wrote to Roger Bowler, the creator of the project and the president of TurboHercules SAS, the little French outfit trying to commercialize the widgetry.
In that letter dated March 11, Anzani again rejects the company’s proposal that IBM return to its long-established practice of licensing its mainframe operating systems to customers for use on non-IBM hardware on fair and reasonable terms.
For decades until 2006 IBM licensed its mainframe operating systems and associated patents so customers could run the operating systems on plug-compatible hardware from such as Amdahl and Hitachi. TurboHercules simply wants the same kind of license.
The letter didn’t reach TurboHercules until after it filed a formal antitrust complaint against IBM with the European Commission two weeks ago. It has accused IBM of tying the use of its dominant mainframe operating systems to its own mainframe hardware.
Anzani’s letter also alleges that individual contributors to the Hercules project, some of whom worked at IBM, have made “unauthorized use of proprietary IBM information.” He doesn’t identify what that proprietary information is.
TurboHercules claims that this is utter twaddle, that IBM itself publishes thousands of pages of technical manuals documenting how to interoperate with its dominant operating systems and that IBM is “abusing its patent portfolio to block open source competition.”
It says Hercules has existed for over a decade without any allegation of patent infringement by IBM. Mainframe professionals have used it to learn mainframe skills and test new programs. And IBM itself previously promoted its use in its “Linux for S/390″ RedBook published in 2000.
However IBM removed all references to Hercules when it republished the RedBook in 2002. That was after IBM got out from under its consent decrees on both sides of the pond. That was also about the time IBM started getting completely intolerant of any mainframe competition and started driving any would-be rivals out of business.
TurboHercules says that “despite IBM’s prior endorsement of Hercules – as well as the release of its own mainframe emulator last year and the purchase of emulation companies Sequent, Platform Solutions and Transitive – it now claims that Hercules is no ‘different from those who seek to market cheap knockoffs of brand-name clothing or apparel.’”
It accuses IBM of breaking two promises: both its pledge not to use its vast patent portfolio as a weapon against open source software projects and its undertaking to the European Commission in 2000 to license its patents to any company on reasonable terms.
The statement Blue made to the EC reads: “IBM has an open patent licensing policy under which we are prepared to license our patents on a non-discriminatory worldwide basis.” (See http://ec.europa.eu/internal_market/indprop/docs/comp/replies/ibm_en.pdf.)
IBM used to provide a patent policy on its web site that said, “IBM has an open approach to patent licensing for products in the Information Technology (IT) field and is generally willing to grant non-exclusive licenses under reasonable and non-discriminatory terms and conditions to those who in turn respect IBM’s intellectual property (IP) rights.”
IBM removed that statement from its web site during its litigation with wannabe mainframer Platform Solutions in 2007. It then acquired Platform Solutions to get it off the market and end the litigation.
TurboHercules claims IBM’s current behavior “demonstrates that IBM’s support of open source stops the moment those efforts threaten IBM’s lucrative mainframe monopolies.”
It also says that IBM’s attack on Hercules and its individual contributors should strike fear in the hearts of all open source developers everywhere.
“Instead of addressing the important tying claims raised by TurboHercules,” it says, “IBM is threatening a patent war against a small open source project to protect its multibillion-dollar mainframe monopolies. If IBM can get away with this, why wouldn’t Microsoft, Google, Apple, Oracle and Adobe follow suit against other open source projects?”
Florian Mueller, the guy who started the NoSoftwarePatents campaign that led the European Parliament to reject proposed legislation sanctioning software patents a few years ago, agrees with TurboHercules.
“In market segments,” he says, “where IBM has nothing to lose, open source comes in handy and the developer community is courted and cherished. In an area in which IBM generates massive revenues (an estimated $25 billion annually just on mainframe software sales!), any weapon will be brought into position against open source. Even patents, which represent to open source what nuclear arms are in the physical world.”
In a blog that calls for a formal investigation and intervention by the European Commission (http://fosspatents.blogspot.com/), Mueller writes:
“Make no mistake: this is not about a simple commercial dispute between IBM and some other vendor. The patents in question, the largest group of which covers the IBM mainframe CPU instruction set, are not specifically connected to what the TurboHercules company is doing beyond the Hercules code base….Other patents that IBM brings into position here cover general address management and virtualization/emulation functionality that would affect many other open source projects as well.
“This is an attack on Free and Open Source Software as a whole. Unless IBM is stopped, other vendors might do the same to protect their turf.”
Mueller has been skeptical of IBM’s 2005 patent pledge from the very beginning.
“When IBM announced its so-called pledge of 500 patents to the open source community five years ago, I said this was just hypocritical and wasn’t going to have any positive effect. Now that half of IBM’s profits are at stake, it resorts to anything including patent warfare against open source just to keep customers locked in for more time to come.”
He claims the purpose of the patent pledge was merely to appease the community as well as the anti-patent legislators during the debate over European software patents “But it was clear to me from the beginning that IBM fully intended to reserve the right to use patents against open source, and by now it’s very apparent that that is the case,” he says.
What initially made him suspicious was the number patents IBM pledged.
“It was clear that a quantity of 500 is so miniscule compared to the size of IBM’s overall patent portfolio that this was going to be, at best, a drop in the ocean. They still reserved tens of thousands of patents. Compared to that, even nuclear disarmament treaties involve much more substantial percentages of the nuclear arms owned by the parties to such treaties.”
Meanwhile, from inside the NoSoftwarePatents campaign he could see that “IBM’s love for free and open source software ends where its business interests begin.”
“I saw,” he says, “IBM as a driving force behind the lobbying for software patents in Europe. We ran into each other from time to time, such as at government roundtables.”
Furthermore, “Not only had IBM been a driving force in terms of lobbying but also through its patent filing activity, which aimed at gradually extending the scope of patentable subject matter over here.”
Plus, he says, “IBM was also known as a relatively aggressive enforcer of its patents, such as through the infamous ‘IBM patent tax.’”
“They started a long time ago to approach smaller companies (companies that wouldn’t have a large enough patent portfolio to do a cross-licensing deal) and told them that in order to steer clear of infringing on any of IBM’s countless patents (which are too many for a small or medium-sized company to check on) they should pay IBM a percentage of their total revenue as a patent licensing fee. I don’t mean cases where they would have said specifically ‘these are the patents you need to license from us’ but really this approach of just scaring people with the sheer breadth and depth of their patent portfolio.”
Mueller also claims “IBM is hypocritical about how it wants patents on industry standards to be licensed. In connection with the European Interoperability Strategy and the European Interoperability Framework, IBM and its political allies demand free access to all sorts of patents in the name of interoperability. But the mainframe architecture is also a de facto industry standard and IBM should therefore make its related patents available on the same terms it demands from other industry players.”
Anzani’s letter can be found at http://openmainframe.org/storage/IBM_reply_TurboHercules_March_2010.pdf and at http://www.scribd.com/doc/29469085/IBM-letter-dated-11-March-2010-to-TurboHercules-SAS. A quick comparison indicates Anzani’s list includes at least two patents, US 5,613,086 (an instruction set architecture patent entitled “Method and System for Locking a Page of Real Storage Using a Virtual; Address) and US 5,220,669 (another architecture patent entitled “Linkage Mechanism for Program Isolation”), that IBM pledged to open source use in 2005 (see http://www.ibm.com/ibm/licensing/patents/pledgedpatents.pdf).