IMB Breaks 2005 Pledge Not to Use Patent Claim Against Foss

The open-source software community is up in arms over claims that IBM has broken its promise to the community by asserting its patents against an open-source project. However, IBM says it has done no such thing.

In a letter to Roger Bowler, president of French mainframe emulator software maker TurboHercules, Mark Anzani, IBM vice president and CTO for IBM System z, said TurboHercules infringes on more than 100 IBM patents.

The FOSS (free and open-source software) community is upset that it appears IBM has broken its 2005 pledge not to use the company's massive patent portfolio against the FOSS world.

In a March 6 blog post, Florian Mueller, founder of the NoSoftwarePatents campaign, said:

"After years of pretending to be a friend of Free and Open Source Software (FOSS), IBM now shows its true colors. IBM breaks the number one taboo of the FOSS community and shamelessly uses its patents against a well-respected FOSS project, the Hercules mainframe emulator."

Anzani's letter cites a "non-exhaustive" list of 106 IBM patents and 67 pending patent applications that he said clash with the TurboHercules software. Bowler started the Hercules project 11 years ago, Mueller said.

In his letter, Anzani said:

"IBM has spent many years and many billions of dollars developing its z-architecture and technology, and is widely known to have many intellectual property rights in this area. IBM's litigation against PSI for, among other things, patent infringement and trade secret misappropriation is a matter of public record, and well known in the industry. According to your own statements, your product emulates significant portions of IBM's proprietary instruction set architecture and IBM has many patents that would, therefore, be infringed."

According to the Hercules Website, "Hercules is an open-source software implementation of the mainframe System/370 and ESA/390 architectures, in addition to the new 64-bit z/Architecture. Hercules runs under Linux, Windows (98, NT, 2000, and XP), Solaris, FreeBSD and Mac OS X (10.3 and later)."

What started the whole fracas is that Bowler wanted to provide users with a choice of running the z/OS software on Hercules and asked IBM for help.

Explaining in a March 23 blog post, Bowler said:

"The outcome that we at TurboHercules hope for is a return to the competitive market for mainframe technologies that existed in the '80s and '90s, where IBM licensed its operating systems to customers of the Plug Compatible Mainframe (PCM) manufacturers such as Hitachi and Fujitsu/Amdahl.

To this end, I wrote to IBM in July of last year asking that it allow customers to acquire z/OS licenses for use with the Hercules open source emulator, with the understanding that pricing and conditions would be set "by IBM at the sole discretion of IBM on reasonable and fair terms." After four months of silence, in November 2009 I received a reply from Mr. Mark Anzani, CTO of IBM's mainframe division, that not only rejected our request, but went on to accuse Hercules of "infringing" IBM's intellectual property."

Indeed, IBM has said no, but the company maintains that it has not broken its pledge.

In response to a query from eWEEK, IBM issued the following statement: "IBM sent TurboHercules a non-exhaustive list of patents that pertain to our mainframe technology. We did not make any explicit assertions or claims that TurboHercules had violated them. We were merely responding to TurboHercules' surprise that IBM had intellectual property rights on a platform we've been developing for more than 40 years. We stand behind the pledge we made in 2005, and also our rights to protect our significant investments in mainframe technology."

However, Mueller claims that is not the case. Said Mueller:

"To add insult to injury, the list of patents with which IBM tries to intimidate the Hercules project even includes two of the 500 patents IBM originally "pledged" to the open source community.

Patent numbers U.S. 5613086 and U.S. 5220669 appear on page 4 of IBM's 2005 "patent pledge," and also appear as patents #83 and #106 in the letter IBM sent to TurboHercules. This betrayal of the promise is unbelievable, but I never believed that IBM was sincere about that pledge in the first place."

Bowler painted Hercules as friendly to IBM and its cause: "As the founder of the Hercules project, I can state with confidence that our emulator is in no way an enemy of IBM. In fact, the Hercules project is made up of some of the biggest mainframe fans on the planet."

Yet, IBM is sticking to its guns and saying the z/OS cannot run on non-IBM hardware. And Bowler's stance has become more aggressive. Advancing his argument, Bowler said:

"The Hercules open source project team created the Hercules emulator in order to give the owners of this hugely valuable installed base of mainframe applications freedom of choice in the hardware systems used with this software. The extraordinary performance and reliability offered by the current generation of multi-core 64-bit processor technology from Intel and AMD make emulation a viable alternative for many mainframe applications. There is no reason why mainframe application owners should not be allowed to benefit from these technologies when they match their needs. That they are not presently available is due solely to IBM's needlessly restrictive licensing policies regarding the use of z/OS and other IBM mainframe system software on non-IBM hardware."

Moreover, Bowler also said TurboHercules has asked the European Commission to take a look at IBM's licensing practices regarding the mainframe, not the first round of scrutiny into IBM's mainframe business practices. Reports began circulating in fall of 2009 that the Department of Justice was investigating claims of anticompetitive practices by IBM involving its mainframe business. Those reports arose soon after a federal district court dismissed a lawsuit filed against IBM by T3 Technologies, which sells non-IBM hardware that runs mainframe workloads. And Neon Systems filed suit against IBM in December claiming anticompetitive behavior. IBM then countersued Neon.

Meanwhile, FOSS aficionados are pledging support for TurboHercules and condemning IBM.

In a Twitter message, Miguel de Icaza, founder of the Mono effort to deliver an open-source implementation of Microsoft's .NET, said, "It is all fun and games until IBM sues your open-source project for patent infringement."

For his part, Mueller called IBM's actions "appalling" and said:

"This proves that IBM's love for free and open source software ends where its business interests begin. In market segments where IBM has nothing to lose, open source comes in handy and the developer community is courted and cherished. In an area in which IBM generates massive revenues (an estimated $25 billion annually just on mainframe software sales!), any weapon will be brought into position against open source. Even patents, which represent to open source what nuclear arms are in the physical world."

If so, then perhaps what is needed in this case is a little detente.

Meanwhile, in an addendum to its statement, IBM said:

"In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies. We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organizations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules' motivations."

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