Royalty-Free Patents: GNU Says GNo!

  • Smaller Small Medium Big Bigger
  • Default Helvetica Segoe Georgia Times
The European Union (EU) has been considering loosening the requirements on software vendors so that software patents may be more easily obtained. But proposals for "royalty-free" software, created by the World Wide Web Consortium (W3C) are getting mixed reviews by the Free Software Foundation (FSF). The FSF is the principal sponsor of the GNU Project and the GNU/Linux License, which licenses the Linux operating system throughout the world. At stake is the nature of the Internet community of developers who have fostered the rapid evolution and continued development of myriad software products.

Software Patents: The Genie out of the Bottle

Up until the 1980s, the United States Patent and Trademark Office (PTO) maintained that software could not be patented because it considered software to be extensions of mathematical algorithms. However, in a legal case called Diamond v. Diehr, the United States Supreme Court ordered the PTO to grant a patent on an invention even though computer software was utilized. In that case, the invention related to a method for determining how rubber should be heated in order to be best "cured." The invention utilized a computer to calculate and control the heating times for the rubber. However, the invention (as defined by the claims) included not only the computer program, but also steps relating to heating rubber and removing the rubber from the heat. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but a process for molding rubber, and hence was patentable. This was true even though the only "novel" feature of this invention was the timing process controlled by the computer.

Subsequently, throughout the 1980s and 1990s, the PTO struggled with developing guidelines for software patents until 1995 when it released its current guidelines.

However, in Europe the conditions under which a software patent may be granted have been traditionally more stringent. European patent law is currently defined by an agreement signed in 1973 called the European Patent Convention (EPC), and under this law only inventions may be patented. Exactly what an invention is has been a poorly defined concept, but the EPC specifically excluded mathematical methods, intellectual methods, ways of doing business, ways of presenting information and--specifically--computer programs. Nonetheless, after the 1981 United States Supreme Court ruling, the European Patent Office (EPO) began granting software patents, issuing more than 30,000 by 1986. However, compared to the U.S. PTO guidelines, the EPO guidelines are still more rigorous, because they limit the patents to software that is used in a business or industrial setting.

These days, the EU is trying to decide whether to consider loosening those restrictions to follow the US PTO lead. Of particular concern is a document proposed by the W3C that seeks to prevent undue litigation for companies that use software technologies across the Internet. This document is called the Royalty-Free Patent Policy.

The Germination of the Royalty-Free Patent Policy

Consider the case of XyQuest, back in the 1980s. XyQuest had developed a very popular and powerful word processing program called XyWrite that offered users unparalleled capabilities to edit and manipulate ASCII text files. Its primary competitors at that time were Microsoft Word and WordPerfect--each of which used their own proprietary file formats. XyWrite was so powerful that IBM approached XyQuest with a proposal to distribute XyWrite under the brand name of Signature. Signature was touted to become the IBM standard word-processing solution because it would work seamlessly with all of IBM's products and still meet all of IBM's requirements to be compatible with its own IBM Office word-processing offerings. However, there was a slight hitch in the negotiations.

When news of IBM's interest in XyQuest was announced, XyQuest was sued by a company called Productivity Software. Productivity Software had previously been granted a patent (U.S. Patent 4,777,596) for technology that minimized data entry keystrokes, a particularly important market niche in the 1980s. Unfortunately, the XyWrite word processor used a software technique that gave the user the ability to accept an abbreviation or correct a spelling error by simply hitting the space bar. This, Productivity Software claimed, was an infringement of its legally granted patent, and it wanted in on the IBM action.

XyQuest tried to license the technique from Productivity Software, but when negotiations failed--forcing XyQuest to remove the function from its product--IBM backed away from the Signature product. Signature never really made it into the marketplace, XyWrite continued to lose share in the marketplace to Microsoft and WordPerfect, and XyQuest finally succumbed when its investors sought more profitable climes. In the wake of this mini-disaster, software vendors suddenly took notice, and they started to be concerned about the impact that software patents might have on their own products.

Now fast-forward through the 1990s and the rise of the Internet to today, when patented, popular, and powerful software technologies such as XML and SOAP are in everyone's lexicon. Suddenly, software vendors are facing an incredibly difficult challenge: to build products that are derivatives of patented international standards. In this 21st century environment of interconnected products, it's clear that vendors can't be left exposed to potential claims of patent infringement without some legal framework for protection. Thus, in October of 1999, the W3C began work on something that it called the W3C Patent Policy Framework. This document, in various draft forms, continued to evolve into today's most important conceptual legal construct: the Royalty-Free Patent Policy.

What Is the Royalty-Free Patent Policy?

The Royalty-Free Patent Policy envisions a mechanism by which software developers who are members of the W3C can register the patents that have been granted to their intellectual property so that they can be freely used by other members of the W3C. In other words, by becoming a member of the W3C club, software vendors and developers will have access to a demilitarized zone where they will be substantially protected from lawsuits stemming from patent infringement. W3C members would not have to pay royalties or licensing fees if, by accident or design, their products used technologies "owned" by other members.

However, in order to make this DMZ work across international legal boundries, it's important that the patent laws of the EU more closely resemble the less-strict patent requirements of the United States. Thus, as the EU considers the W3C's proposed policy, there is substantial debate about whether the Royalty-Free Patent Policy is in the best interests of competition and innovation.

Free for Whom? GNU's Complaint

Across the spectrum of software developers, there is substantial disagreement about whether software patents are necessary or are--in practice--actual obstacles to competition and innovation. Numerous Web sites exist condemning the practice, the laws, the courts, the companies, and the governments that have "caved in" to the wranglings of intellectual property lawyers. These objecting entities often see the impact of software patents akin to the English Acts of Enclosure that once threw the English commoners off their homesteads between 1750 and 1810, paving the way for the Industrial Revolution. One might suppose then that the Free Software Foundation--the driving force behind the GNU/Linux License--would be equally opposed to software patents. After all, software patents seem to go against everything that the GNU Project represents.

However, the FSF has been extremely active in attempting to reconcile the interests of its members (which include some of the big names in software) with the spirit of its founding tenets. First of all, the FSF is involved because software patents are a reality and software licensing constructions like the GNU General Public License are something of an anomaly that need to be protected. But more importantly, the FSF seeks to maintain the community that fostered products such as Linux. Consequently, the FSF's chief complaints with the Royalty-Free Patent Policy are twofold and highly technical.

First of all, under the Royalty-Free Patent Policy, there are restrictions that would limit the size and scope of the public community that would have access to the patents. But secondly--and more critically from the FSF's point of view--the underlying provisions of the Royalty-Free Patent Policy prohibit the free distribution of products that contain the patented technologies. Such distribution is exactly what the GNU Project is about: free distribution of software! Software like the Linux operating system itself! And without such free distribution, the primary means of market distribution for GNU software is gone, prohibited, and subject to patent infringement claims.

For these reasons, GNU says "GNo!" to the final draft of the Royalty-Free Patent Policy. Such a policy--though protecting the rights of commercial software vendors--drives a stake into the heart of the open-source movement that has been driving the development of the Internet for the last five years.

IBM and Linux: Software Free for Royalty Alone

Of final note is IBM's perspective on the whole debate on software and technology patents. On the one hand, IBM is an important implementer of Linux and a significant contributor to the open-source movement of software. On the other, IBM has--for nine straight years--been the leading recipient of technology patents from the United States, with over 3,000 registered in 2001 alone. Is IBM supporting the W3C Royalty-Free Patent Policy? You bet your life! Will it throw its weight behind the FSF's concerns? Probably not! Will this shift in the wind direction impact IBM's support of Linux and other GNU-sponsored software? Of course not! IBM will undoubtedly take advantage of any free technology that comes its way, modify it to meet its purposes, and then attempt to market it as its own solution. And who knows? Perhaps some new patents will be the result along the way.

On the other side, however, is the question of the FSF and the GNU Project itself. If the EU embraces the W3C proposal for royalty-free patents, we will perhaps be entering a new era in which patents will be free to royalty alone, enclosing the software marketplace and relegating the open-source movement to back alleys and flea markets. If, on the other hand, the EU determines that the current software patent mechanisms are sufficient, the legal wranglings between development companies will probably end up employing more lawyers than developers.

Where this is leading the EU and the software development community is now completely up in the air. If you have thoughts or comments, please pass them along in our forums. How the developer community responds to the current proposals will undoubtedly have an impact on the quality and the cost of software products our organizations use.

Thomas M. Stockwell is the Editor in Chief of MC Press, LLC. He has written extensively about program development, project management, IT management, and IT consulting and has been a frequent contributor to many midrange periodicals. He has authored numerous white papers for iSeries solutions providers. His most recent consulting assignments have been as a Senior Industry Analyst working with IBM on the iSeries, on the mid-market, and specifically on WebSphere brand positioning. He welcomes your comments about this or other articles and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Thomas Stockwell

Thomas M. Stockwell is an independent IT analyst and writer. He is the former Editor in Chief of MC Press Online and Midrange Computing magazine and has over 20 years of experience as a programmer, systems engineer, IT director, industry analyst, author, speaker, consultant, and editor.  


Tom works from his home in the Napa Valley in California. He can be reached at





Support MC Press Online





  • White Paper: Node.js for Enterprise IBM i Modernization

    SB Profound WP 5539

    If your business is thinking about modernizing your legacy IBM i (also known as AS/400 or iSeries) applications, you will want to read this white paper first!

    Download this paper and learn how Node.js can ensure that you:
    - Modernize on-time and budget - no more lengthy, costly, disruptive app rewrites!
    - Retain your IBM i systems of record
    - Find and hire new development talent
    - Integrate new Node.js applications with your existing RPG, Java, .Net, and PHP apps
    - Extend your IBM i capabilties to include Watson API, Cloud, and Internet of Things

    Read Node.js for Enterprise IBM i Modernization Now!


  • Profound Logic Solution Guide

    SB Profound WP 5539More than ever, there is a demand for IT to deliver innovation.
    Your IBM i has been an essential part of your business operations for years. However, your organization may struggle to maintain the current system and implement new projects.
    The thousands of customers we've worked with and surveyed state that expectations regarding the digital footprint and vision of the companyare not aligned with the current IT environment.

    Get your copy of this important guide today!


  • 2022 IBM i Marketplace Survey Results

    Fortra2022 marks the eighth edition of the IBM i Marketplace Survey Results. Each year, Fortra captures data on how businesses use the IBM i platform and the IT and cybersecurity initiatives it supports.

    Over the years, this survey has become a true industry benchmark, revealing to readers the trends that are shaping and driving the market and providing insight into what the future may bring for this technology.

  • Brunswick bowls a perfect 300 with LANSA!

    FortraBrunswick is the leader in bowling products, services, and industry expertise for the development and renovation of new and existing bowling centers and mixed-use recreation facilities across the entertainment industry. However, the lifeblood of Brunswick’s capital equipment business was running on a 15-year-old software application written in Visual Basic 6 (VB6) with a SQL Server back-end. The application was at the end of its life and needed to be replaced.
    With the help of Visual LANSA, they found an easy-to-use, long-term platform that enabled their team to collaborate, innovate, and integrate with existing systems and databases within a single platform.
    Read the case study to learn how they achieved success and increased the speed of development by 30% with Visual LANSA.


  • Progressive Web Apps: Create a Universal Experience Across All Devices

    LANSAProgressive Web Apps allow you to reach anyone, anywhere, and on any device with a single unified codebase. This means that your applications—regardless of browser, device, or platform—instantly become more reliable and consistent. They are the present and future of application development, and more and more businesses are catching on.
    Download this whitepaper and learn:

    • How PWAs support fast application development and streamline DevOps
    • How to give your business a competitive edge using PWAs
    • What makes progressive web apps so versatile, both online and offline



  • The Power of Coding in a Low-Code Solution

    LANSAWhen it comes to creating your business applications, there are hundreds of coding platforms and programming languages to choose from. These options range from very complex traditional programming languages to Low-Code platforms where sometimes no traditional coding experience is needed.
    Download our whitepaper, The Power of Writing Code in a Low-Code Solution, and:

    • Discover the benefits of Low-code's quick application creation
    • Understand the differences in model-based and language-based Low-Code platforms
    • Explore the strengths of LANSA's Low-Code Solution to Low-Code’s biggest drawbacks



  • Why Migrate When You Can Modernize?

    LANSABusiness users want new applications now. Market and regulatory pressures require faster application updates and delivery into production. Your IBM i developers may be approaching retirement, and you see no sure way to fill their positions with experienced developers. In addition, you may be caught between maintaining your existing applications and the uncertainty of moving to something new.
    In this white paper, you’ll learn how to think of these issues as opportunities rather than problems. We’ll explore motivations to migrate or modernize, their risks and considerations you should be aware of before embarking on a (migration or modernization) project.
    Lastly, we’ll discuss how modernizing IBM i applications with optimized business workflows, integration with other technologies and new mobile and web user interfaces will enable IT – and the business – to experience time-added value and much more.


  • UPDATED: Developer Kit: Making a Business Case for Modernization and Beyond

    Profound Logic Software, Inc.Having trouble getting management approval for modernization projects? The problem may be you're not speaking enough "business" to them.

    This Developer Kit provides you study-backed data and a ready-to-use business case template to help get your very next development project approved!

  • What to Do When Your AS/400 Talent Retires

    FortraIT managers hoping to find new IBM i talent are discovering that the pool of experienced RPG programmers and operators or administrators is small.

    This guide offers strategies and software suggestions to help you plan IT staffing and resources and smooth the transition after your AS/400 talent retires. Read on to learn:

    • Why IBM i skills depletion is a top concern
    • How leading organizations are coping
    • Where automation will make the biggest impact


  • Node.js on IBM i Webinar Series Pt. 2: Setting Up Your Development Tools

    Profound Logic Software, Inc.Have you been wondering about Node.js? Our free Node.js Webinar Series takes you from total beginner to creating a fully-functional IBM i Node.js business application. In Part 2, Brian May teaches you the different tooling options available for writing code, debugging, and using Git for version control. Attend this webinar to learn:

    • Different tools to develop Node.js applications on IBM i
    • Debugging Node.js
    • The basics of Git and tools to help those new to it
    • Using as a pre-built development environment



  • Expert Tips for IBM i Security: Beyond the Basics

    SB PowerTech WC GenericIn this session, IBM i security expert Robin Tatam provides a quick recap of IBM i security basics and guides you through some advanced cybersecurity techniques that can help you take data protection to the next level. Robin will cover:

    • Reducing the risk posed by special authorities
    • Establishing object-level security
    • Overseeing user actions and data access

    Don't miss this chance to take your knowledge of IBM i security beyond the basics.



  • 5 IBM i Security Quick Wins

    SB PowerTech WC GenericIn today’s threat landscape, upper management is laser-focused on cybersecurity. You need to make progress in securing your systems—and make it fast.
    There’s no shortage of actions you could take, but what tactics will actually deliver the results you need? And how can you find a security strategy that fits your budget and time constraints?
    Join top IBM i security expert Robin Tatam as he outlines the five fastest and most impactful changes you can make to strengthen IBM i security this year.
    Your system didn’t become unsecure overnight and you won’t be able to turn it around overnight either. But quick wins are possible with IBM i security, and Robin Tatam will show you how to achieve them.

  • Security Bulletin: Malware Infection Discovered on IBM i Server!

    SB PowerTech WC GenericMalicious programs can bring entire businesses to their knees—and IBM i shops are not immune. It’s critical to grasp the true impact malware can have on IBM i and the network that connects to it. Attend this webinar to gain a thorough understanding of the relationships between:

    • Viruses, native objects, and the integrated file system (IFS)
    • Power Systems and Windows-based viruses and malware
    • PC-based anti-virus scanning versus native IBM i scanning

    There are a number of ways you can minimize your exposure to viruses. IBM i security expert Sandi Moore explains the facts, including how to ensure you're fully protected and compliant with regulations such as PCI.



  • Encryption on IBM i Simplified

    SB PowerTech WC GenericDB2 Field Procedures (FieldProcs) were introduced in IBM i 7.1 and have greatly simplified encryption, often without requiring any application changes. Now you can quickly encrypt sensitive data on the IBM i including PII, PCI, PHI data in your physical files and tables.
    Watch this webinar to learn how you can quickly implement encryption on the IBM i. During the webinar, security expert Robin Tatam will show you how to:

    • Use Field Procedures to automate encryption and decryption
    • Restrict and mask field level access by user or group
    • Meet compliance requirements with effective key management and audit trails


  • Lessons Learned from IBM i Cyber Attacks

    SB PowerTech WC GenericDespite the many options IBM has provided to protect your systems and data, many organizations still struggle to apply appropriate security controls.
    In this webinar, you'll get insight into how the criminals accessed these systems, the fallout from these attacks, and how the incidents could have been avoided by following security best practices.

    • Learn which security gaps cyber criminals love most
    • Find out how other IBM i organizations have fallen victim
    • Get the details on policies and processes you can implement to protect your organization, even when staff works from home

    You will learn the steps you can take to avoid the mistakes made in these examples, as well as other inadequate and misconfigured settings that put businesses at risk.



  • The Power of Coding in a Low-Code Solution

    SB PowerTech WC GenericWhen it comes to creating your business applications, there are hundreds of coding platforms and programming languages to choose from. These options range from very complex traditional programming languages to Low-Code platforms where sometimes no traditional coding experience is needed.
    Download our whitepaper, The Power of Writing Code in a Low-Code Solution, and:

    • Discover the benefits of Low-code's quick application creation
    • Understand the differences in model-based and language-based Low-Code platforms
    • Explore the strengths of LANSA's Low-Code Solution to Low-Code’s biggest drawbacks



  • Node Webinar Series Pt. 1: The World of Node.js on IBM i

    SB Profound WC GenericHave you been wondering about Node.js? Our free Node.js Webinar Series takes you from total beginner to creating a fully-functional IBM i Node.js business application.
    Part 1 will teach you what Node.js is, why it's a great option for IBM i shops, and how to take advantage of the ecosystem surrounding Node.
    In addition to background information, our Director of Product Development Scott Klement will demonstrate applications that take advantage of the Node Package Manager (npm).
    Watch Now.

  • The Biggest Mistakes in IBM i Security

    SB Profound WC Generic The Biggest Mistakes in IBM i Security
    Here’s the harsh reality: cybersecurity pros have to get their jobs right every single day, while an attacker only has to succeed once to do incredible damage.
    Whether that’s thousands of exposed records, millions of dollars in fines and legal fees, or diminished share value, it’s easy to judge organizations that fall victim. IBM i enjoys an enviable reputation for security, but no system is impervious to mistakes.
    Join this webinar to learn about the biggest errors made when securing a Power Systems server.
    This knowledge is critical for ensuring integrity of your application data and preventing you from becoming the next Equifax. It’s also essential for complying with all formal regulations, including SOX, PCI, GDPR, and HIPAA
    Watch Now.

  • Comply in 5! Well, actually UNDER 5 minutes!!

    SB CYBRA PPL 5382

    TRY the one package that solves all your document design and printing challenges on all your platforms.

    Produce bar code labels, electronic forms, ad hoc reports, and RFID tags – without programming! MarkMagic is the only document design and print solution that combines report writing, WYSIWYG label and forms design, and conditional printing in one integrated product.

    Request your trial now!

  • Backup and Recovery on IBM i: Your Strategy for the Unexpected

    FortraRobot automates the routine tasks of iSeries backup and recovery, saving you time and money and making the process safer and more reliable. Automate your backups with the Robot Backup and Recovery Solution. Key features include:
    - Simplified backup procedures
    - Easy data encryption
    - Save media management
    - Guided restoration
    - Seamless product integration
    Make sure your data survives when catastrophe hits. Try the Robot Backup and Recovery Solution FREE for 30 days.

  • Manage IBM i Messages by Exception with Robot

    SB HelpSystems SC 5413Managing messages on your IBM i can be more than a full-time job if you have to do it manually. How can you be sure you won’t miss important system events?
    Automate your message center with the Robot Message Management Solution. Key features include:
    - Automated message management
    - Tailored notifications and automatic escalation
    - System-wide control of your IBM i partitions
    - Two-way system notifications from your mobile device
    - Seamless product integration
    Try the Robot Message Management Solution FREE for 30 days.

  • Easiest Way to Save Money? Stop Printing IBM i Reports

    FortraRobot automates report bursting, distribution, bundling, and archiving, and offers secure, selective online report viewing.
    Manage your reports with the Robot Report Management Solution. Key features include:

    - Automated report distribution
    - View online without delay
    - Browser interface to make notes
    - Custom retention capabilities
    - Seamless product integration
    Rerun another report? Never again. Try the Robot Report Management Solution FREE for 30 days.

  • Hassle-Free IBM i Operations around the Clock

    SB HelpSystems SC 5413For over 30 years, Robot has been a leader in systems management for IBM i.
    Manage your job schedule with the Robot Job Scheduling Solution. Key features include:
    - Automated batch, interactive, and cross-platform scheduling
    - Event-driven dependency processing
    - Centralized monitoring and reporting
    - Audit log and ready-to-use reports
    - Seamless product integration
    Scale your software, not your staff. Try the Robot Job Scheduling Solution FREE for 30 days.