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In light of the recent report by Open Source Risk Management that 283 granted but not-yet court-validated patents could possibly be used to attack the Linux kernel (pdf), IBM has pledged not to use its patent portfolio against the Linux kernel. That’s nice.

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But I want more.

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I think IBM should organize a defensive “Patent Pact” with HP, Novell, Intel, AMD, Red Hat, Sun, etc. whereby each of them singly and as a group pledges:

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1. Not to assert any patent infringement claims against the Linux kernel and
2. If any plaintiff does assert a patent infringement claim against the Linux kernel then each member of the pact will do a thorough review of their own patents and will bring suit against that plaintiff for all legitimate claims of patent infringement and
3. If a given plaintiff appears to be unsusceptible to patent infringement counter-claims, then all other legitimate causes of action will be explored and brought and
4. Not to enter into any other agreements that would limit their ability to fulfill the terms of this agreement.

This would be a powerful defense for the kernel. It would cloak the kernel in a patent suit of armor that only a fool would dare to challenge. Sure, you could sue someone claiming that the Linux kernel infringes one of your patents, but if you did so, you’d have to brace yourself for an onslaught of claims.

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Perhaps I’m naive, but I don’t think Microsoft is really planning on bringing patent infringement lawsuits against the Linux kernel. I think annoying little non-businesses like SCO or these companies that have no business other than IP-licensing are more likely to try something like this. Those latter non-companies are the reason for point 3 above. If someone doesn’t use or produce any products, but just extorts money from real businesses, I mean, just licenses their IP, then you’d have to explore other causes of action.

One question would be to whom each of these individual companies would make such a pledge. They could each make the pledge to one another, but it seems also the pledge should be made to Linus and all the other copyright holders who’ve contributed to the kernel.

You’d also want to explore any possible anti-trust or unfair competition issues, but I think, without knowing, that if you allowed anyone to join such a purely defensive pact, it would be fine.

So, let’s have it IBM; give us something even better, and let’s have it in writing.

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