Tonnerre Lombard
FFII’s coordinator for Switzerland
IBM speaks out against software patents
The international computer manufacturer IBM has filed an amicus brief to the Bilski case in the USA, a case which is considered decisive for the future direction of software patents in the United States and potentially larger parts of the world.
The message was very clear: IBM stated that software patents are not needed to create or protect innovation. In fact they are hindering it and damaging the overall economy: «You’re creating a new 20-year monopoly for no good reason.»
This position came as a bit of a surprise considering that IBM is part of the Business Software Alliance, an organization who promoted software patents very openly during the Software Patent debate in the European Union. However, IBM lawyers have stated repeatedly on various unofficial occasions since then that the patents have not served the wealth of the company in any way.
Cold Patent War: Productivity considered harmful
The problem IBM is facing with software patents is very easy. The few actors in the world who had a sufficiently large budget to equip their operations with software patents are now standing unable to use them against each other because the patent portfolios are so vast that both companies would suffer serious consequences in any dispute. The reason for this is simple: IBM, just like other large companies, has a large amount of so-called «prior art», which means pre-existing software in this case.
This prior art however offers other patent holders a chance to attack IBM in revenge, because it most likely infringes on a number of patents held by the competitor. In the sum of hundreds or even thousands of patents, this means that they cannot practically be enforced, except as a defensive measure.
The only companies which are not susceptible to this type of dilemma are companies which never actually produced anything at all — so-called «non-producing entities» (NPE), or shorter, patent trolls. These companies solely exist for the purpose of holding and enforcing a software patent. As such, they contribute nothing to the state of the art while causing damage to companies that do.
Summarizing this effect, the patent system has a very negative effect on the economy indeed: it discourages innovation and productivity as a whole while promoting litigation. Thus, it is much less surprising that IBM finally realized that software patents are damaging — even to them.
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