September 15, 2006

Prior art won't solve the software patent problem

Author: Richard Stallman

The Open Source Development Lab (OSDL) has a project to educate the US Patent Office about ideas
already known ("prior art") so as to prevent issuance of "poor
quality" software patents which would cover those known ideas. It
works by annotating free software packages in free software
repositories so that ideas in them can be found more easily. It
sounds like a good thing because the problems are hidden. The GNU
Project does not participate in the project, and you should think
twice about it too.

Such a project cannot really protect programmers from software
patents, because it focuses only on absurd software patents -- those
that could be legally denied or invalidated based on prior art.
However, the greatest danger comes from patents that are not absurd,
those for which we have no prior art.

The OSDL project does not recognize that part of the problem. The
invitation we received implicitly equates "bad" software patents with
invalid software patents, as if to say that software patents are OK
provided they cover ideas that are new. But this problem is not just
a matter of their choice of words. It is inherent in the substance of
the project.

The project is not just incomplete -- it can backfire, too. When the
patent office knows about prior art, it interprets that prior art in
the weakest possible way. Courts usually decline to consider any
prior art that the patent office has studied. (This is not an
official legal rule, but it is usual practice.) Thus, our main chance
of invalidating a patent in court is to find prior art that the patent
office has not studied. Furthermore, patent applicants can use this
information to write patent claims that cover important activities
while avoiding the known prior art that could invalidate the claims.
The patent office is eager to help patent applicants do this.

If the worst thing about the project were its inability to solve the
whole problem, it would still be better than nothing. But given that
it can also backfire, it can be worse than nothing.

Some large companies are starting to recognize the problem that
software patents cause; but since they have research labs and large
patent portfolios, they do not want to eliminate software patents.
They only want to get rid of the absurd ones that are likely to cause
trouble for them. So they now call for measures to "improve patent
quality." The OSDL project responds to this appeal, but it doesn't
serve the needs of software developers and users in general.

What programmers need, in order to do their work safely, is the
abolition of software patents. That is what we should campaign for.
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. If we are not careful, this can sap the pressure for a real

We must not let laborious half-measures distract us from what we
really need. We must demand a real solution that addresses the whole
problem of software patents: one that makes programming safe.

Copyright 2006 Richard Stallman
Verbatim copying and distribution of this entire article are permitted
worldwide without royalty in any medium provided this notice is preserved.


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