OSDL patent project 'worse than nothing'

Analysis: A project to fight low-quality software patents in the US could make the legal terrain more difficult for open source, according to FSF founder Richard Stallman
Written by Matthew Broersma on

An effort by the Open Source Development Laboratory (OSDL) to help developers defend themselves against software patents has come under fire from Free Software Foundation (FSF) founder Richard Stallman. He believes the plan could backfire.

The controversy centres around 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 monopolise ideas without which software can't be developed.

The OSDL's project, Open Source as Prior Art (OSAPA), aims to create documentation (tagging) for open source programs — which, by nature, aren't patented. This documentation can be used by the US Patents and Trademarks Office (USPTO) 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 USPTO 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 OSAPA scheme.

Stallman argued that the workshop focuses 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.

The project could backfire, acording to Stallman, making it "worse than nothing". He argued 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 OSAPA 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 admitted that software tagging isn't a long-term solution, the organisation 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 USPTO 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."

Peters said the OSDL does support "system-wide reform or potentially the elimination of the system we know today", but believes 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 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.

Vested interests
Critics have pointed out that many of the large companies behind patent reform efforts in the US, such as IBM — an OSDL member and supporter of OSAPA — are the same companies aggressively pushing for software patents to be legitimised 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 OSAPA, 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.


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