Stallman Critical of OSDL Patent Project

PatPending writes to mention a News.com article about Richard Stallman's objections to the OSDL patent project. He argues that the project may actually be 'worse than nothing', as it will undermine certain legal tactics. From the article: "'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."

Comments

Aboslutly correct.

[geekoid]

"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.""

Aboslutly correct.

Re:Aboslutly correct.

[westlake]

Aboslutly correct.

We are two months from an important mid-term election, two years from a presidential election. Patent reform ranks somewhere below The Bridge to Nowhere on the national political agenda.

Stallman... half right

[xtaski]

Have to disagree. For those without $1M of FSF funds to run around fighting granted, bad patents, it's much more difficult to fight in a come-from-behind position when XYZ Patent Troll Inc. already has a patent granted. Litigating patents is expensive. It's cheaper to lop off the 10% that are obvious "spam patents" before they're ever granted than to let all 10% (that would be like 4,000 these days) go through and clean up later...

Re:Stallman... half right

[cswiger2005]

It's better to lop off as many software patents as we can, agreed. Litigating patents is usually expensive, but then, having to pay a patent troll royalties for a bogus claim usually becomes expensive, too. Having prior art available to refute a patent troll's claim makes litigating bogus patents a lot easier and a lot cheaper.

I don't believe anything which could be described as an algorithm should be patentable. I also don't believe that you should patent public API's, as such "programming interfaces" are by definition intended for use by other programs; public APIs normally are widely distributed in documentation, which at least prevents others from patenting the APIs which you might release (as your release will obviously constitute prior art). I suppose that if you implement computer software which is sufficiently original, not completely obvious after 5 minutes of thought, and is not representable as a mathematical algorithm, that might deserve the protection of a patent, but for the most part, simple copyright ought to provide enough protection....

If your kitchen counter was on fire...

[xtaski]

Would you wait for the rest of the house to burn down and rebuild the entire house from scratch... or put out the fire on the counter and replace the counter...?

Re:If your kitchen counter was on fire...

[Rogerborg]

Relevant how? This is like setting fire to the curtains and saying "How do you like that, kitchen counter?"

Moral correctness is not enough

[EmbeddedJanitor]

It's like saying nobody should steal, so I won't lock my car/house/whatever.

Sure, in the long term, and a perfect world, you might want to get rid of software patents. Right now however they are real and are here and measure that combat them face to face have some merit.

Re:Moral correctness is not enough

[Millenniumman]

Why does software not being a physical object make it less suitable to be patented? Patents are there so that if you invent something, someone else can't copy it and mass produce it cheaper than you can, without having paid anything for the development. If I invent a new software algorithm, and it is not patented, then someone can copy it (not a copy of the code, but of the process) into their own software, which they have far greater resources to distribute and undercut on price. Why should I spend time inventing new algorithms, then?

Re:Moral correctness is not enough

[vertinox]

If I invent a new software algorithm, and it is not patented, then someone can copy it (not a copy of the code, but of the process) into their own software, which they have far greater resources to distribute and undercut on price. Why should I spend time inventing new algorithms, then?

Because chances are the algorithm you created was most likely neither novel nor unique to the large amounts of algorithms created before you. As in... Your algorithm had to be based on some math that everyone knows or at the most an obscure math professor came up with years ago.

You aren't writing your own language but taking from knowledge of mankind and applying it to your own methods.

Secondly, copyrights protect someone from copying your code, but not your methods because if someone can simply recreate your algorithm simply by looking at the results and not even see any of your source code then again... your algorithm was neither novel nor unique and therby not deserve a patent.

However, your effort and code should be copyrighted and protected by such methods.

Re:Moral correctness is not enough

[F452]

Maybe you shouldn't, if you're concerned about not getting monopoly protection. No loss to the rest of us. Someone else will do it in your place. Patents are supposed to promote innovation for the benefit of society. Software patents just stifle people who are already working on making better algorithms with no interest in idea monopolies.

----
Freedom is on the March!
http://www.movingtofreedom.org

Re:Moral correctness is not enough

[LordLucless]

Building on what you said: the whole basis of a patent is that of a trade. The public gives the inventory a time-limited monopoly, the inventor tells the public how his invention works. The reason this is a good deal for the public is the non-obvious clause. Patents are designed to protect things that nobody else can figure out how to do. If someone can look at your invention and think "Eh, I know how to do that", then your invention is not worthy of patent - the public would be getting a bad deal, because they're trading a monopoly for something they already know. Patents are designed so that when someone invents something really cool, he doesn't keep it as a trade secret. If he does, and he dies, then the world loses knowledge. If he patents it, then everyone knows how to do it (even if they can't use it for another ten years) and knowledge is retained. That is how patents can (and should) act towards the good. The problem now is that the USPTO is betraying their purpose by making crappy deals on behalf of the public. They're giving away monopolies like candy, and reaping the kickbacks (errr, I mean processing fees).

Re:Moral correctness is not enough

[Chris Burke]

Why should I spend time inventing new algorithms, then?

The same reason you spend time writing software at all (that others with more resources may duplicate and undercut): The new algorithm solves a particular need of yours. It is useful.

This is why Sir Charles Hoare created the quicksort in 1960. It probably didn't even occur to him that this was something he should prevent others from using, and he still found it useful to invent. Thank God he did not -- could not -- patent it, or it would have been over a decade before people could have taken free advantage of the fastest-average-time general sorting algorithm known today. Imagine everyone else had been doing the same thing -- locking up merge sort, bin sort, r/b binary trees, avl binary trees, b-trees, etc etc. With all these foundations of computer science locked up in patents for 14-20 years, how much progress do you think the software world would have made compared to what it did with free access to all these ideas? Remember, we're talking about a fourth of the entire existence of computers.

Why does software not being a physical object make it less suitable to be patented?

Because software is math.

That's all it is. A program is just a series of mathematical operations performed by a computer. Now the computer is an invention. But the software is just a calculation. Patenting a software algorithm is like patenting a sequence of button pushes on your calculator, and by "like" I mean "is very literally the same".

Imagine if Sir Issac Newton had decided to lock away his Calculus? He might have had some legal troubles from Leibniz, but once they came to an amicable arangement, everyone else would have been out of luck. Is Calculus not a great invention? Of course! But like all math, it is an invention whose benefit comes from what could be built upon it. Thank goodness that Newton published his book and did not restrict others from using what it described, or you have to wonder where we'd be today.

Why shouldn't software be patentable? Because it's a patent on math, the fundamental language of the universe.

Horns Of A Dilemna

[rumblin'rabbit]

On Stallman's (probably long) list of things he doesn't like, the following rank at or near the top:

• Software patents.
• Proprietary (that is, closed) software.

Here's the thing: Probably the best defense against having to deal with software patents is to keep the software closed. Don't make the code public and don't tell how it works. If people don't know you've violated their patent, they are not likely to sue you, and their software patent won't be worth very much.

Such a strategy is not dishonest - even when behaving with the highest integrity, inadvertent patent violation is not only possible, but likely. You should not knowingly violate patents, but you aren't required to help the patent holders identify offenders either.

By hating both simultaneously, RMS has given himself a very tough row to hoe. Open software is highly vulnerable to patent litigation.

Re:patent GPL?

[illuminatedwax]

Because if someone patents something, you can't make a free version of it yourself. A software patent closes off all versions and iterations of that software completely.

Stallman's issue isn't with copyright - his issue is with people not voluntarily giving up their code to the community. He is all for copyright and ownership of code. His problem is that software is not something you should be able to patent, and that the OSDL initiative distracts from this point.

Absolutism is impractical

[RareButSeriousSideEf]

Yes, okay, sure... the Real Problem is that software is patentable in the first place. But does Stallman think that we're going to change that fact quickly just by being absolutist about it?

If not, how many ideas do we want to see slip into proprietary hands while we maintain our moral purism about software patents? This is a political issue, and political agendas live, eat, sleep & breathe half-measures. According to Stallman, "If we are not careful, this can sap the pressure for a real solution." Erm, what pressure? Where is the well-funded, politically connected lobby that's creating more pressure for a Real Solution than beneficiaries of software patents can create in the opposite direction? `Cause short of that, we all know that we're not going to see a Real Solution anytime soon.

IMO, the idea of "Open Source as Prior Art" is basically a good one that needs some tweaking. If Stallman is correct (and I have no way of knowing whether he is) 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," then that might be a problem. However, I can't understand how patent holders of a variation on an OSDL-tagged thingamabob could (a) claim their idea is patentable because of some variation, and still (b) go after the FOSS-derived works. Wouldn't the very granting of the patent in spite of the OSDL art be the basis for establishing non-infringement?

Stallman wants the very idea of ideas to be irrevocably tied to freedom. That's a beautiful vision, and God bless him if he can ever pull it off; I'm (sadly) not optimistic. Meanwhile, I'll settle for having as many of them as possible stay clean from proprietary claims. Failing both, anonymous/pseudonymous coding & releasing might be our only refuge.