Stallman thinks OSPA is a bad idea.

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 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.

"When the patent office knows about prior art, it interprets that prior art in the weakest possible way." - This is a laugh line for any prosecutor. If his statement is to be taken at face value, Stallman has never heard of 35 U.S.C. § 103(a), and is not familiar with MPEP (the Manual of Patent Examining Procedure, the patent examiner's bible).

MPEP 2121 -

When the reference relied on expressly anticipates or makes obvious all of the elements of the claimed invention, the reference is presumed to be operable. Once such a reference is found, the burden is on applicant to provide facts rebutting the presumption of operability. In re Sasse, 629 F.2d 675, 207 USPQ 107 (CCPA 1980).

"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.)" Either Stallman knows next to nothing about patent litigation, or is simply plying propaganda. A trial court considers anything put before it by the defense team. Yes, patent litigators on the defense most often shy from prior art that has been overcome in prosecution because it's a tough sell, but not if it's on-point. Consider Alza v. Mylan Labs. The simple fact is, most of the time, prior art overcome in prosecution was done so legitimately. If the prosecutor's arguments bent the facts, which is unusual, that art may be a wonderful specimen for presentation to the court.

"[P]atent applicants can use this information to write patent claims that cover important activities while avoiding the known prior art that could invalidate the claims." - Rather muddle-headed statement, but Stallman appears to be referring to the novelty of patent claims over the prior art. Sounds statutory to me. But his point perhaps is, "the patent office is eager to help patent applicants do this." "This" being grant novel claims. Stallman is saying that the patent office is eager to grant novel claims. A bit of overstatement on the eager part, but Stallman seems to be on to something.

Stallman's main beef with OSPA is that it seems to legitimize software patents by offering information (prior art) that may help to weed ones that shouldn't be granted from ones that should. To Stallman, that's a bad idea. For Stallman, software patents deserve the death sentence, and nothing less.

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.

Utopian fanatics like Stallman most fervently attack moderates, mistaking them for fence-sitters. OSDL appears clear-headed that software patents are not going away, at least in the forseeable future, and in seeing a need to help provide weed killer for those weedy patents that should never take root. "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 (Patent Office) do its job better," OSDL General Counsel Diane Peters said. While OSPA may be a lot of work for little benefit, any effort in expanding the base of accessible prior art is to be lauded.

Reportage from c/net, zdNet.

On a very related note, consider Peter Zura's coverage on whether software patents retard innovation or tend to increase anti-competitive concentration in the software industry; the conclusion - apparently not.