Interview: Richard Stallman, on Free Software and patents

18 Jan 2006

The giant of the Free Software community shares his views on a series of recent initiatives announced by IBM and the USPTO

Richard Stallman is the founder of the GNU operating system and the Free Software Foundation. The GNU operating system is a fundamental part of the GNU/Linux platform, and at the heart of the Free and Open Source Software community.

Stallman and supporters of Free Software take the position that software patents stifle innovation and creativity and are counter to the goals of Free Software: to promote 'computer users' rights to use, study, copy, modify, and redistribute computer programs'. So it was with great interest that we sought his views on a series of open-source initiatives announced by IBM and the USPTO, aimed at improving patent quality with new tools and systems to search out prior art.

What are your views on the proposed alert service whereby anyone can receive email alerts around patent activity in areas in which they are interested?

This may be convenient for some people, but merely knowing about a patent (supposing that the service noticed it) does not protect you from it.

How effective do you think the proposed system will be, whereby code can be submitted in such a way as to make it legally admissible as prior art and which would be electronically searchable (by patent examiners)?

The way the US patent system interprets its prior art strips it of nearly all significance. Namely, it rejects patent applications if they are identical to known prior art. Like a US soldier in Vietnam, each instance of patent art controls only the ground it stands on. Even nearly trivial patents, such as the Microsoft FAT File System patent, can be issued and even survive re-examination.

This situation is unlikely to change as long as the PTO regards patent applicants as its customers. As long as it does not change, I suggest people not spend their time helping the US PTO "do a good job", as it defines the job. You would only fool yourself, and perhaps others, into thinking that you were helping to solve the problem.

If the Patent Office were really to regard its job as looking for ways to reject patents, and if it had more leeway to do so, conceivably that process might become useful enough to be worth assisting. However, it cannot solve more than a part of the problem of software patents.

The third initiative involves the building of a patent quality index, whereby patents are indexed according to how well they adhere to patent law (including prior art). What are your views on that?

That seems to be designed to teach patent application drafters how to do a better job. That makes for more danger, not safety. It's no comfort, when you're attacked with a patent, to know that it was a

"high quality" patent. Quite the contrary - if a patent has poor "quality", we might have a better chance of fighting it.

All in all, these seem like distractions. They do nothing important to end the danger of software patents. But that is not surprising, since the PTO does not have the authority to make any change that would have such an effect. That requires changes in the law, either its text or its interpretation. Either the Supreme Court or Congress could do this, but no one else.

How far do you see it as hypocritical for the Free and Open Source Software (FOSS) community to lobby the EU to formally outlaw software patents in the CII directive and then subsequently assist the USPTO in its work with software patents?

It isn't "the FOSS community" in general, it is mainly IBM. IBM lobbies in favour of software patents. So we could hardly accuse IBM of hypocrisy.

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