O.K., maybe I was too generous to IBM in yesterday’s post. While IBM, according to Rosalie Marshall’s V3.co.uk post entitled “IBM confirms open-source patent pledge“, has stepped forward to confirm its “500 patent pledge”, we have not seen the retraction of the two patents in question. This is understandably creating a fair amount of speculation as to the nature of IBM’s 5 year old pledge.
Rosalie’s excellent post highlights the argument that pledge may be ’applicable only to “qualified open-source individuals or companies”‘ and that TurboHercules is excluded because it has been funded by IBM competitors to challenge the IBM mainframe commercial software market. On the other hand, Scott Merrill, in his CrunchGear post entitled “Is IBM splitting hairs with open source?“, puts forward the options that the pledge may be open source software license specific, that the addition of the 2 pledged IBM patent to the TurboHercules letter may be the result of “overexcited lawyers”, or that IBM considers itself ”free to sue the company, and not the open source project itself, for the patent infringement”.
I am inclined, in the absence of a speedy retraction of the 2 patents by IBM, to agree with Scott’s guess that his last option of “free to sue the company” is on the money (perhaps best combined with the essence of the argument highlighted by Rosalie). While I am fairly confident that this cloud of confusion will pass with time, the current storm will no doubt leave many marks on the open source software landscape.