On 11 Oct 2003 at 17:03, Peter D. Ward wrote:
> I've had backchatter on this idea with Adam from time to time. FSI pays
> royalties to IBM because of the IBM patented functionality performed by
> Flex-ES. Imagine if somehow a 9672 were able to host Flex-ES with some
> resulting commercial impact that makes this a really neat idea in high
> demand. Do you think we would be able to say to IBM that we do not owe
> them royalty payments on any copy of Flex we licensed to be hosted on a
> 9672? I can't imagine a circumstance where the answer would be that we
> don't owe them royalties in that case, unless we didn't owe them
> royalites in ANY case. I believe the same analysis would be true for
> Hercules, in which case your implication that running Herc on a 9672 is
> some sort of safe harbor is probably incorrect.
I find this a curious argument. Patent royalties are due based on
an agreement presumably signed by FSI and IBM - not on the mere
existence of a patent or patents held by IBM. If FSI has agreed to
pay IBM royalties based on certain IBM patents, then surely the
agreement must spell out the details under which such royalties are
due. It is entirely routine for patent licensing agreements to
provide for payments that exceed various reasonable expectations,
e.g. that the patent is later found to be invalid, or beyond the
term of the patent. Presumably IBM's lawyers knew what they were
doing when they signed their agreement with you. I imagine the
terms include a royalty for each copy of Flex/ES sold, regardless
of platform, though of course I understand that you won't want to
discuss details of your agreement here.
How we got from the recurring issue of people on this list
discussing possibly unlicensed use of IBM operating systems under
Hercules (which would be mostly a violation of copyright and
perhaps trade secrets), to a discussion of patents, I'm not sure.
Certainly the issue of whether Hercules violates IBM and other
patents has come up before, and I expressed my opinion several
years ago that it is a near certainty that it does. Whether IBM
wants to pursue the matter, particularly in the case of a non-
profit software effort, is one interesting question. Whether IBM
feels some potential danger from pursuing and potentially losing
against a purely software implementation of its hardware and
methods patents is another. One more is whether IBM has licensed,
or indeed is in a position to license, the non-IBM patents that I
am quite sure are necessary to produce a hardware implementation of
S/390 and z/Arch to FSI or other software-only vendors.
Tony H.
(On the road, so somewhat email deprived)
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