Improving the frame of debate: IBM’s patent pledge.

Earlier, I discussed IBM’s patent pledge and I encouraged you to be careful of what you’re giving up in exchange for your continued access to the 500 patents IBM promises not to sue you for infringing. IBM is not offering you a gift. You are not getting something for nothing. Using the language of the pledge, and describing the pledge in the best possible situation, you are getting increased access to 500 patents in exchange for not defending your “intellectual property” rights against “Open Source Software”. As you can see, the exact terms of the bargain are unknown because IBM expresses them in overgeneral and prejudicial language. It is to their benefit to do this so that they can discontinue the pledge against anyone they wish at almost any time.

I have improved upon my framing of this issue, a frame which I haven’t seen anyone else pose, and which concisely states my rationale for why this promise isn’t nearly as important as the mainstream tech press says it is.

IBM holds more patents than any other patent holder. In 2004, IBM was awarded 3,248 patents; the most of any patent holder for the twelfth consecutive year. In order to practically assess IBM’s pledge, I would like to know how much less risk I face of losing a patent infringement lawsuit as a result of this pledge. What program(s) might I deal in which (1) implement patented ideas listed in the set of 500 patents included in IBM’s pledge, and (2) do not implement ideas covered by other active IBM patents?

The answer to the question will describe a set of programs. The size of the set is directly proportional to the utility of IBM’s pledge—the more programs in the set, the more useful the pledge.

If the set has no programs in it, IBM’s pledge is useless. There is no sense in trading away anything in exchange for nothing.

If the set has just a few programs in it, IBM’s pledge is useful, but not very useful. It is unlikely that trading away enforcement of one’s rights will be rewarded by dealing in the 500 patents.

If the set has a lot of programs in it, IBM’s pledge is quite useful. In this case, it may be a good idea to trade away enforcing one’s rights to gain access to these patented ideas. Whether trading away one’s rights is worthwhile depends on the value of the rights one is asked to trade away (which implies learning exactly which rights one is asked to trade away, talking about “intellectual property” rights won’t cut it), and for how long one is asked to suppress defending these rights (ostensibly, for the duration of the 500 patents).

If we don’t assess the value of the patent pledge, we can’t know if it is good. If we don’t know the pledge’s value, we have no business recommending its use to anyone or celebrating its existence. I understand how oppressive it is to live with software patents (also called “software idea patents” which might be a more useful phrase because it reminds the listener that what is covered are ideas, a much broader scope than covering computer software programs), but we can’t afford to look at IBM’s pledge as a favor until we understand the strings attached to this promise.