September 19, 2006 8:12 AM PDT

Stallman: OSDL patent project 'worse than nothing'

An effort by the Open Source Development Labs to help developers defend themselves against software patents has come under fire from Free Software Foundation founder Richard Stallman, who believes that the plan could backfire.

The controversy centers on the issue of patents on software processes, which many believe could threaten the future of open-source software and software innovation in general. Because software processes are abstract, critics say such patents effectively let companies monopolize ideas, without which software can't be developed.

Richard Stallman Richard Stallman

The OSDL project, dubbed Open Source as Prior Art, aims to create documentation, or tagging, for open-source programs--which, by nature, aren't patented. This documentation can be used by the U.S. Patent and Trademark Office to show that patented concepts existed previously to the patent being issued, thus potentially invalidating the patent and reducing the danger of software patent lawsuits.

The OSDL and the Patent Office held a workshop in Oregon last week on the future of software tagging. In response, Stallman published a critique urging developers to "think twice" before they participate in the Open Source as Prior Art project.

Stallman argues that the workshop focused on the wrong issues and that low-quality patents--those for which prior art exists and which shouldn't have been issued in the first place--aren't the main problem.

"Such a project cannot really protect programmers from software patents...The greatest danger comes from patents that are not absurd--those for which we have no prior art," Stallman wrote.

Could backfire?
The project could backfire, according to Stallman, making it "worse than nothing." He asserted that when prior art is considered by the Patent Office during the patent-granting process, it usually loses any weight it might have had in a court case.

"Thus, our main chance of invalidating a patent in court is to find prior art that the Patent Office has not studied," Stallman wrote.

Second, patent applicants could use the prior art uncovered by the OSDL to write patent claims that simply avoid the technologies used in the tagged software. "The Patent Office is eager to help patent applicants do this," Stallman wrote.

Finally, he wrote, a "laborious half measure" such as the Open Source as Prior Art project could divert attention from the real problem: that software is patentable in the first place.

"Perhaps the worst problem in the OSDL's project is that it appears to offer a solution to the software patent problem, which isn't really one," he wrote. "If we are not careful, this can sap the pressure for a real solution."

While the OSDL acknowledged that software tagging isn't a long-term solution, the organization said short-term measures are important and could add to, rather than reduce, the pressure for a more complete solution.

"We are approaching the software patent issue with a realistic vision and with feasible goals--to reduce the number of poor-quality patents issued, to provide resources after a patent issues to prevent them whenever possible from being used against developers and defendants, and to help the (Patent Office) do its job better," OSDL General Counsel Diane Peters told ZDNet UK. "It is an important short-term approach that will contribute to the longer-term opportunity for reform."

Short-sighted focus
Peters said the OSDL does support "systemwide reform or potentially the elimination of the system we know today" but believes that it isn't going to happen anytime soon. Focusing solely on the abolishment of short-term patents is short-sighted, Peters said.

She noted that many in the open-source community, including OSDL employee on Linux icon Linus Torvalds, believe low-quality patents are, in fact, the biggest threat to open-source software--a sharp difference from Stallman's point of view.

Critics have pointed out that many of the large companies behind patent reform efforts in the United States, such as Microsoft and IBM--both also OSDL members and supporters of Open Source as Prior Art--are the same companies aggressively pushing for software patents to be legitimized in Europe.

In Stallman's view, this is because it's useful for large companies to fight against low-quality patents through efforts such as Open Source as Prior Art while keeping the basic system in place and thus protecting the value of their large patent portfolios. However, such measures don't serve the interests of software developers in general, according to Stallman.

The OSDL acknowledged that the policies of some of its members "stand in the way of long-term patent reform."

"We would like to see all companies that state their commitment to open source, but which take seemingly divergent views in different geographies, to articulate a consistent, uncompromising position on a global basis," Peters said.

She added that the OSDL believes the interests of large companies are already shifting toward international consistency.

Matthew Broersma of ZDNet UK reported from London.

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Open Source Development Labs, Richard Stallman, software patent, patent, tagging

12 comments

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Software patents will destroy your earning potential
Coming soon: don't even THINK about writing software for a living or, even worse, bringing a new product to market, unless you are an employee of a very very large corporation.

Microsoft,( who has a patnet on conjugating verbs) Adobe (who *owns* the concept of using tabbed panes in the UI) et. al. will slap you with a infringement lawsuit that you can't even think about being able to afford to answer (avg. patent litigation now well over a million dollars). This is using the mere fact that software patents are permitted as a weapon against smaller, more innovative companies, nevermind any particular patent.

Meanwhile, don't think that you can stop them from using YOUR patented invention. After the RIM/Balckberry fiasco (bad patent meet bad-patent infringer) Congress has recently decided that small IP compnaies who attempt to assert their right to stop infringers through forcing them to stop selling the infringing product are, well, out of luck; they have a special name for small IP companies- they're called patent trolls. Oh, and the courts will decide just how important, and therefore how much money you get, the infringing component was to the overall infringer's product. If it was a small thing, then, if you can endure the 7-10 years of legal bills (avg. patent attorney fee $500.00 an hour) they can drag out your case for. Remember, MS is printing money- they can use your fiesty case to teach other IP rights claimants a nasty lesson and they'll never even feel it.

So the end real, effective result is- you're down by law- you can't write software and you can't enforce your own rights. That is the actual world you'll live in. I'd advise you to talk to your congressional representative, but alas, MS and IBM got there first, and oh my, they brought their checkbooks.

This country isn't for you. It's for the white trash CEOs who jack the system into anything but a democracy to serve their Gulf V jet and private island "needs". Sure they're destroy the country, but don't worry, they'll be OK in the Caman Islands paradise while they leave you to dig through the remains of what was once a great nation.
Posted by asdf (241 comments )
Reply Link Flag
What a Marxist if I Ever Saw One!
Just look at that guys appearance and look at this photo of Karl Marx --<a class="jive-link-external" href="http://en.wikipedia.org/wiki/Karl_marx" target="_newWindow">http://en.wikipedia.org/wiki/Karl_marx</a>.

A wannabe for sure, and I'm quite certain he is one. The sneaky way he is trying to subvert our great national patent system is disgusting. And all of these foolish developers that follow him is even worse.

In case you are unaware, Karl Marx was the founder of "modern" socialism was avowed anti-capitalist. So Marxism is equivalent to socialism and they deplore the concept of private property. Why don't they just move to Europe and stay out of the United States and let us practice capitalism in peace. :-)
Posted by WJeansonne (480 comments )
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wow
Software patents are unnecessary, dangerous and without fail illegitimate.

Software patents sifle innovation and capitalism.

Yet you ignorantly call him a marxist based on basically a beard.

What an intellectual giant you are!
Posted by qwerty75 (1164 comments )
Link Flag
One party or one company, the results is the same
The time Marx lived world was very different place and it is easy to understand that thoughts like that raise when most of the working individuals actually do not have any chance to have better than slavery jobs.

I see his work as utopia, that has no place on earth as long as people are selfish and resourses are scarce (= probably never). However, do not think that "our great national patent system" is tuned for the best to serve capitalism. Patenting is currently mostly useful for big corporations who have money to use their patents to kill little innovitative companies, true advancers of capitalism. And for patent exploiters, who do not do anything else than exploit patents and don't thus have pressure to do crosslicensing deals like companies who actually produce something.
Posted by mikkom (1 comment )
Link Flag
Know what you are talking about
Umm..before making comments about Karl Marx (who Stallman does physically resemble) and the significance of his writings, it might help if you had read them, or at least knew what they were about, beyond some basic, garden variety US anticommunist "Karl Marx is gonna get your mama" propoganda.
Posted by UrlikSkarsol (1 comment )
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Once Again the Open Source Movement is Bifurcating
Yeah I know what a socialist/Marxist is smart aleck. There for all intents and purposes synonymous in my book. Moreover, I know a rat when I see one.
Posted by WJeansonne (480 comments )
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re
If you think marxism and socialism are one in the same, I suggest you get some real education and stop watching Fox news.
Posted by qwerty75 (1164 comments )
Link Flag
Facts Correction
Please note, contrary to what the article says, Microsoft is _not_ a member of OSDL (<a class="jive-link-external" href="http://groups.osdl.org/osdl_members/osdl_roster/" target="_newWindow">http://groups.osdl.org/osdl_members/osdl_roster/</a>), nor are they supportive of Open Source as Prior Art. Microsoft has taken a strong stand in support of software patents, both in the United States and in the EU.
Posted by laekius (1 comment )
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Cooperation a better approach?
The more I follow items of interest to Open Source the more I see a disturbing trend. I may be misguided here, but it seems that Stallman mentally labels anyone who doesnt agree with him and his outlook as a heretic. It may just be that every article that I have read where he is mentioned is on a contentious topic, I question though if it were a hot button issue prior to his interest in it.

Personally I have never met the man, and hold him in some respect for the work he has done. He see's what he and many others percieve as a moral issue and acts upon it, as ultimatly I think we all should. However, there is a form of extremism that easily attaches itself to moral issues. A fanaticism that puts up blinders to outside ideas that ultimatly prevents acceptable comprimise that unifies disparate groups of people. Without that unity Open Source faces the challenge that all the kings soldiers faced. How to put a terminally fractured entity back together again.

OSDL is a good example. Any action that helps defend Open Source, is a good thing. If by your opinion they are taking the the wrong path, perhaps the best thing to do is not denegrate but to work with and towards making it an effective coalition for combating software patents. Perhaps they are walking the primrose path, but working with them, with both sides willing to bend their necks a little is better than dismissing them and lambasting them.
Posted by azerthoth (4 comments )
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It''s not about Stallman, it's about software
It's a about your ability to make a living without being sued out fo existence. If you act as though software patents were legitimate, you're not going to get anywhere. IBM has 9000 patents on software. Microsoft is getting 3000-4000 a year, including the ability to add and remove whitespace (two different ones). So what if you use the patents from this "safe" pool; you're still going to get a cease adn desist letter in your mailbox- then what? Are you going to fight it? No, you're not.

And yes, this CAN happen to a company JUST your size.

So the POINT is not what is Stallman's attitude, hairstyle, personal characteristics, other opinions or anything else; the point is that software patents are being used ina self conscious way by Adobe, Microsoft and IBM to all but "own" all software development. Obviously not a free market, obviously not good for the consumer
Posted by asdf (241 comments )
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change is incremental
Change takes a long time. It doesn't happen all at once.

This is a step in the right direction.
Posted by tplunkett (1 comment )
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