May 12, 2001 won't solve software patent problems

Author: JT Smith

- by Richard Stallman -

There are major problems with Actually, two
problems -- one tactical, and one strategic. In the U.S. patent system, if the PTO looked at certain prior art and
decided to issue the patent anyway, the court is supposed to presume
the PTO was right to regard that prior art as insufficient.
But if the PTO was unaware of the prior art, then the court can look
at it with an unbiased eye.As a result, prior art is more effective against patents if the PTO
does not know about it. For potential patent victims to inform the
PTO about prior art is a self-defeating project.

The effect of this is worse than you might think, because of the way
the PTO uses prior art. The question they are supposed to ask is, "Is this
idea unobvious given the known prior art?" But their threshold of
"unobvious" is so low, that in practice the tiniest difference from
the known prior art is enough excuse for them to issue a patent. The
courts are much more likely to apply a sensible definition of
"unobvious", if they are not blocked by a prior PTO decision about the
same prior art.

Then there is the strategic problem. I have seen publicity associated
with this activity, and it serves as an excuse to whitewash the system
of software patents. The publicity suggests that we could live with
software patents, if only we "work to make the system function" in
this way. It encourages people to think that the only problem in
software patents is when non-novel ideas are patented, and that
software patents on new ideas (some brilliant, most pedestrian) are
ok. And that will undermine the efforts now under way in Europe to
prevent software patents there.

Organized efforts to collect prior art could be useful if they avoid
these two problems. But if they have these problems, they can easily
do more harm than good.

This is a non-exclusive message sent to us by Richard M. Stallman. It is published here with his permission.

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