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The patent nuclear weapon

Tags:
IBM,
Developer,
Software Patents

John Carroll ZDNet.com

Published: 29 Aug 2003 18:09 BST

IT news goes in cycles, and those cycles seem to be defined by major legal conflicts. A year ago, the big news was the Microsoft antitrust case. You couldn't visit ZDNet without having one or more articles about the case, and hell hath no fury like TalkBackers fighting over Microsoft. Today, that case is old news, displaced by legal turbulence surrounding SCO's attempt to lay proprietary claim to parts of Linux. Hell hath something new to talk about.

After months of activity on SCO's part, during which time they threatened not only IBM, but customers of Linux, and even Linus Torvalds, business proponents of open source have managed a counterattack. Red Hat has filed suit against SCO, and IBM, the original target of SCO's case, has responded with a countersuit of its own.

IBM is certainly justified in responding to SCO's challenge, given the threat that SCO poses to IBM's Unix business as well as the open-source product upon which IBM is building its future. However, the fact that IBM is fully justified in defending itself doesn't change the fact that software developers should feel a bit queasy about the tactics it has chosen to use.

Days before the announcement of IBM's countersuit, Bruce Perens gave a speech at Linuxworld where he singled out IBM (among others, such as Red Hat) as the greatest threat to Linux on account of their patent activities. He's still right, even though Mr Perens isn't likely to say so, as IBM's response is revealing of the dangers of a patent regime that permits algorithms and business processes to be "owned" by someone. Current US patent law unfairly tilts the marketplace towards big companies with lots of resources, even if few would miss SCO should IBM's defensive tactics succeed.

The cost of an arms race
As noted by Brian Ferguson, an attorney with McDermott, Will & Emery, in a recent ZDNet article, "The patent claims will be expensive to handle." From a tactical standpoint, that makes a lot of sense, since IBM knows it has far more resources than SCO, and is more capable of going the financial distance.

Still, the fact that IBM can pull out the patent nuclear weapon against SCO means they can use it against anyone, and that should be a frightening notion. I noted in a past article that most big companies build patent libraries as a form of defensive armour against external IP claims, and that certainly appears the case with IBM's use of these patents against SCO. What can be used defensively, however, can also be used offensively. Faith is your only guarantor that a company won't ever use those patents in an offensive capacity.

Building a defensive library, however, costs money. First, filing a patent application can take anywhere between $15,000 and $25,000, which isn't within reach of many small businesses. Second, costs associated with defending against patent assaults dwarf the aforementioned application fees, making patents an expensive prospect.

Those most able to afford these costs are big companies, and those least capable are smaller companies with fewer resources. This skews the market in favour of large companies, leading to an environment where smaller companies have a harder time growing into bigger companies.