Hiding Falsehoods and FUD Behind Legalisms

In a recent article in the Windsor Star, everyone’s favorite plain talker, Blackboard General Counsel Matthew Small, made the following statement:

“No patent holder can definitely say, ‘I will not do X with my patent.’ However, I can say very confidently that we are focusing on the commercial sector.”

The first half of this statement is absolutely false and Small should (and probably does) know better. Which perhaps tells us something about the second half of his statement as well.Consider the following excerpt from an IBM press release:

IBM today pledged open access to key innovations covered by 500 IBM software patents to individuals and groups working on open source software. IBM believes this is the largest pledge ever of patents of any kind and represents a major shift in the way IBM manages and deploys its intellectual property (IP) portfolio…

Also today, the United States Patent and Trademark Office (USPTO) has released its annual list of the top patentees. With 3,248, IBM earned more U.S. patents than any other company for the twelfth consecutive year. IBM had 1,314 more patents than any other company. This is the fourth consecutive year IBM has received more than 3,000 U.S. patents and remains the only company to receive more than 2,000 patents in one year. While IP ownership is an essential driver of innovation, technological advances are often dependent on shared knowledge, standards, and collaborative innovation. IBM’s IP framework enables both while protecting truly new, novel and useful inventions. Open standards can accelerate the interoperability and expansion of the global infrastructure.

“True innovation leadership is about more than just the numbers of patents granted. It’s about innovating to benefit customers, partners and society,” said Dr. John E. Kelly, IBM senior vice president, Technology and Intellectual Property. “Continuing IBM’s legacy of leadership in the strategic use of intellectual property, our pledge today is the beginning of a new era in how IBM will manage intellectual property to benefit our partners and clients. Unlike the preceding Industrial Economy, the Innovation Economy requires that intellectual property be deployed for more than just providing the owner with freedom of action and income generation.”

At LinuxWorld in August, IBM pledged not to assert any of its patents against the Linux kernel. Today’s pledge covers thousands of open source projects and programs. “This is not a one-time event,” said Dr. Kelly. “While IBM will continue to demonstrate leadership in patent output, through measures such as today’s pledge, we will increasingly use patents to encourage and protect global innovation and interoperability through open standards, and we urge others to do so as well. We will work with the USPTO and other commentators and policy makers to ensure that the U.S. patent system continues to evolve to address the challenges of the Innovation Economy.”

IBM invests approximately five billion dollars annually in research and development and has made many discoveries and inventions that have improved quality of life.

So. The world’s most prolific generator of intellectual property has said definitely, “I will not do X with my patent,” where X is assert its patents against Open Source projects. Sorry, Mr. Small. IBM’s lawyers–and Novell’s, and Sony’s, and RedHat’s–disagree with you. And let’s define “definitely.” IBM has offered a legally binding license, reserving the right to revoke the license only for entities that assert their own patents. This isn’t the same sort of vague reassurance that Blackboard has provided about how they’re not interested in going after Open Source projects (or universities, for that matter).

Now, given that we now know Blackboard could say definitely that they will not assert their patents against Open Source projects or universities, why wouldn’t they? Perhaps their annual report to investors might give us a clue (under the “Risk Factors” heading):

If potential clients or competitors use open source software to develop products that are competitive with our products and services, we may face decreased demand and pressure to reduce the prices for our products.
The growing acceptance and prevalence of open source software may make it easier for competitors or potential competitors to develop software applications that compete with our products, or for clients and potential clients to internally develop software applications that they would otherwise have licensed from us. One of the aspects of open source software is that it can be modified or used to develop new software that competes with proprietary software applications, such as ours. Such competition can develop without the degree of overhead and lead time required by traditional proprietary software companies. If potential clients use open source software to internally develop software or if a current or potential competitor develops products using open source software that are competitive with our products and services, we may face decreased demand for our products and services.

So let’s see:

1. Blackboard thinks that Open Source will allow both competitors and customers to develop quality software less expensively than they can.
2. Understandably, the recognize that this may lead to lower demand for their product.
3. They have refused to make a legally binding commitment not to go after Open Source or universities, even though there are widely known examples of patent holders doing just that.

Need I go further?