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IBM v. TurboHercules in 2010
In April 2010, IBM sent a letter to free software company TurboHercules with a "non-exhaustive" list of 106 patents and 67 patent applications which a project such as TurboHercules's project would infringe. Reactions from the free software community vary greatly.
 IBM's patent pledge
Two of the 173 patents were part of 500 patents which IBM promised not to assert against free software. For TurboHercules, the patent promise is irrelevant because, even if they were protected against those two patents, there are still 171 other IBM patents to worry about. However, the inclusion of these two patents in the letter to TurboHercules raises the question of how narrowly IBM plans to interpret its promise. A reaction from IBM seems to say that they think they can exclude companies from the promise whenever they decide that they are "competitors":
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.
 Patents trump interoperability?
The core of the IBM-TurboHercules case is about interoperability. IBM has used its patents as a defence. It is thus possible that the European Union will decide whether patents trump interoperability requirements.
It would be a big win if the European Union decided that patents cannot exempt companies from their requirements to allow interoperability.
 Did IBM use software patents aggressively?
(Can you help? This page is missing some details. Why did TurboHercules SAS want their customers to be able to buy licences for IBM's operating system? Isn't it the goal of the emulator to make that unnecessary?)
IBM makes mainframe computer hardware and they have a special operating system for that hardware. TurboHercules develops software that competes with IBM's. They seem to make an emulator that allows software for IBM's special operating system to be run on GNU/Linux, and thus on much cheaper computers.
TurboHercules filed an antitrust complaint with the European Commission regarding the bundling of IBM's mainframe software and mainframe hardware.
Some, such as Groklaw, claim that this complaint constitutes an "attack" on IBM, which frees IBM from its patent pledge (since IBM would be using its patents for a defensive counter-action rather than aggression).
TurboHercules, in a correspondence with IBM, said that it was unaware that "IBM has intellectual property rights in this area". Some say that IBM's list of patents is thus not a threat but just a reply to this statement, thus kinda requested by TurboHercules.
 Did IBM break their 2005 patent promise?
The list of patents with which IBM threatened TurboHercules, included patents for which IBM had made a promise in 2005 not to use against the free software community. IBM didn't bring TurboHercules to court, so they didn't violate the promise in that sense, and IBM's threat would have had the same practical effect with those patents removed, but still, IBM did use patents
 Related pages on en.swpat.org
- Competition law defence - this idea could be strengthened if the European Commission decides that IBM must be interoperable and can't avoid this obligation via patents
- Interoperability exception
- IBM breaks the taboo and betrays its promise to the FOSS community, by Florian Mueller
- Glyn Moody's article on the topic
- IBM's letter, listing patents
- TurboHercules: The Next Step by Roger Bowler
- Groklaw: Why I Believe IBM is Free to Sue The Pants Off TurboHercules
- Groklaw: Digging a Little Deeper into TurboHercules/IBM - OpenMainframe.org and Microsoft
- IBM: IBM’s Open Source Patent Pledge
- When Reptiles Attack: Has IBM Tired Of FOSS?, by Simon Phipps
- Get Off IBM's Back Already! IBM Supports Linux, by Steven J. Vaughan-Nichols
- FOSS Claims of IBM Breaking Promise Seem Mostly Smoke, Little Fire, Brian Proffitt, April 12th 2010
- IBM breaks OSS patent promise, targets mainframe emulator, 6 Apr 2010, ArsTechnica
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