Richard Stallman, founder of the Free Software Foundation, charges that the Open Source as Prior Art initiative focuses on "absurd software patents" and could backfire.Controversy has erupted over an initiative by the Open Source Development Labs, known as Open Source as Prior Art, which is designed to improve the quality of software patents and thereby reduce the number of patents that can be used to threaten open-source software developers and users.
The goal of OSAPA is to reduce the number of poor-quality patents that are issued by increasing accessibility to open-source software code and documentation that can be used as prior art during the patent examination process.
This would result in a reduction in the number of software patents that can be used to threaten open-source and other software developers and users, and would result in increased innovation, Diane Peters, the OSDLs general counsel, told eWEEK Sept. 15.
"We also want to help people defend themselves against bad patents. Our strategy to achieve this involves helping the USPTO to improve the quality of software patents using open source as prior art," she said.
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But the project and its goals have come under stinging criticism by Richard Stallman, founder of the Free Software Foundation, who accuses it of essentially pandering to those large companies with huge patent portfolios that really only want to get rid of the patents that will cause them trouble.
In an article posted on NewsForge, Stallman charged that the projects focus on "absurd software patents" did not focus on the needs of software developers and users in general, and could have negative consequences.
"The GNU Project does not participate in the project, and you [developers and users] should think twice about it too," he said.
Peters disagreed, saying the project did not just focus on "absurd software patents, to use Stallmans words," but was also focused on making sure that the patents that were issued were as narrow as possible. "That is of critical importance," she said.
The OSDL agrees that software patents today are "a mess," Peters said, adding, "We are not pretending that this is not a problem. We know that it is a problem and we are working really hard on a practical solution today that isnt waiting for the abolition of software patents generally."
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But, while the industry waits for that result, which many people want, there will be "stacks of software patents at issue, and a lot of them are going to be bad and a lot of them are going to be over-broad and they will be threatening developers," Peters said.
"The solution we are working towards is alleviating the problem and reducing the risk between now and when, if ever, software patents are no longer an issue," she said.
The OSDL is also in the middle of a workshop for open-source software authors, repositories and users, to help it define and create a distributed "Social Tagging" mechanism to describe that software.
The goal is to create a system that allows the characteristics of open-source software code and documentation to be easily collected and searched by everyone, while still being distributed and shared by all participating repositories, she said.
Peters said the OSDL has been working with a programmer throughout the summer to develop a prototype software marking system called OSSTag, which is in pre-beta form but has been demonstrated at the workshop. The goals are to see how tags might be applied, what hierarchical structures would need to be in place to ensure that when software developers published code this could be found later, and how the prototype could be improved so code can be better marked, found and reused.
"That has been the strong focus of the workshop, but we have also talked about what the USPTO needs, what the community needs [and] how the repositories may be able to work together to provide an easier way for the USPTO to access the software that has been published on SourceForge, by Google and Apache, which is not always easy to find," she said, adding that this would benefit not just the USPTO but also software programmers as well.
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For some the matter is practical rather than political. Workshop attendee Ross Turk, an engineering manager in the open-source technology group at SourceForge.net, an open-source software development Web site that provides free hosting to open-source projects, told eWEEK that while he did not know Stallman personally, he had a great amount of respect for what he stands for.
"I think its great that there is someone out there with such pure principles. The community needs that," he said.
But Turk is not participating in OSAPA because of his feelings toward software patents, he said; he is participating because the USPTO wants to find open-source software more easily, "and in that way they share a goal with the majority of our users. I am there because just about anything we do to provide public exposure to open-source projects is good for FLOSS as a whole," he said.
Turk said SourceForge.net was also interested in learning about the patent examination process so that it could educate its users on how to annotate and publish their code so that it can effectively be protected against subsequent patent claims.
"We want to make sure that the patents that are granted are truly novel. The patent examiners have a hard job and, whether you like patents or not, its good for everyone when they perform it in a thorough and informed manner," he said.
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However, according to Stallman, the project "sounds like a good thing because the problems are hidden. But 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," Stallman said.
The problem, Stallman says, is the implicit equation of "bad" software patents with invalid software patents, as if to say that software patents are okay provided they cover ideas that are new. "The project is not just incomplete—it can backfire, too," he said.
When the patent office knows about prior art, it interprets that prior art in the weakest possible way, he said. The courts usually also decline to consider any prior art that the patent office has studied, meaning that the main chance of invalidating a patent in court is to find prior art that the patent office has not studied, Stallman said.
"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," he said.
"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," Stallman said.
Peters disagreed with Stallmans assessment, saying she could not agree with any position that advocated not doing anything to help the Patent Office on the front end. The reason she gave was that while the Patent Office is looking at a patent application, there are no patent rights per se at that time and the claims can be defeated or narrowed. But once the patent is issued, the law applies a presumption of validity to the patent, which can also not be overcome except by clear and convincing evidence. "So, it is much harder to get rid of a patent after it has been issued than it is before, when it is still in the form of an application," she said.
But Stallman said that while some large companies are starting to recognize the problem that software patents cause, they do not want to eliminate them, as they have research labs and large patent portfolios of their own. They only want to get rid of the ones that are likely to cause trouble for them and are thus now calling for measures to improve patent quality, he said.
"The OSDL project responds to this appeal, but it doesnt 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," he said. "Perhaps the worst problem in the OSDLs project is that it appears to offer a solution to the software patent problem, which isnt really one. If we are not careful, this can sap the pressure for a real solution," Stallman said.
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When asked if the OSDL supported the abolition of software patents, Peters told eWEEK that OSDL was in favor of software reform. That said, it does have some members who have substantial patent portfolios that include software patents.
"I cant speak for them, but what I find wonderful is that many of them are involved in this project and recognize that a lot of what they and others hold should never be issued. IBM has been involved in the workshop and [has] been involved in this project from the beginning. We also have a representative from Microsoft here, as well as from the major source code repositories and developers," she said.
But Stallman contended that "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."
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