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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 solution.
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
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