Safeguarding Innovation: Navigating IP Protection in Open-Source Software

As open-source software (OSS) continues to expand, businesses and innovators encounter new challenges in protecting their intellectual property (IP). OSS are programs whose source code is freely available for anyone to view, modify, and distribute. Open source is essential in our digital world, driving everything from smartphones to critical infrastructure systems globally. OSS offers flexibility, but it also comes with risks related to patent protection. For example, using open source code in a commercial product might expose a company to patent infringement claims if the code includes patented technology without proper licensing.  

Open-source communities have produced groundbreaking technologies like Linux, Apache, and TensorFlow, empowering developers to collaborate globally. However, with this rise comes the need for patent protection. Innovators need to balance sharing open-source software with protecting their work. Using open source in business requires understanding licenses and patent laws. A strong IP strategy should address how to handle licenses, contributions, and the patentability of software. This is important for companies to stay competitive while still participating in open-source projects (Intellectual Property Challenges in the Digital Age – GIPC, n.d.). 

What Is an Open-Source Software License? 

An open-source software license grants users the freedom to use, modify, and distribute the software. However, the conditions and rights vary depending on the license type. The most common OSS licenses include copyleft and permissive licenses, each with distinct rules on redistribution, modification, and commercialization (“Open Source Software Licenses Explained: A Beginner’s Overview,” 2023). 

• Copyleft licenses, such as the GNU General Public License (GPL), require that any modified software versions remain open source under the same license terms. This ensures that derivative works stay freely available. While this promotes innovation and collaboration, it can also limit a company’s ability to commercialize proprietary adaptations of the software. 

• Permissive licenses, like the MIT License and Apache License 2.0, offer more flexibility. Developers can modify the software and incorporate it into proprietary projects without being required to disclose their source code. This is attractive for businesses looking to innovate quickly while maintaining control over their IP. 

For a computer program to be considered open-source, it must follow the rules set by the Open Source Initiative (OSI) in their Open Source Definition, created by Eric Raymond (Raymond on Open Source – New Learning Online, n.d.). According to this definition, software is open source if its license: 

• Allows free distribution and selling without charging royalties or fees, 

• Provides access to the source code, 

• Permits modifications and sharing of modified versions under the same license, 

• Ensures the original source code’s integrity, 

• Does not discriminate against any person or group, 

• Does not limit use in any specific field, 

• Allows use without needing an additional license, 

• License is not tied to a specific product, 

• Does not restrict other software, and 

• Is neutral to all technologies. 

Is Open-Source Software Patentable?

The relationship between open source and patent law is complex. OSS, which promotes free use and modification, often conflicts with the exclusivity of patents. However, certain aspects of open-source projects, like algorithms or unique features, can still be patented if they meet the criteria of novelty, non-obviousness, and usefulness. Open source software (OSS) can be patentable, just like proprietary software, as patents protect the underlying methods or processes. The distinction lies in licensing: OSS promotes code sharing and collaboration, while non-open source software restricts usage and access. While OSS can be freely used and modified, specific inventive modifications can be patented.  

Open-source licenses, such as GPL or Mozilla Public License, allow free distribution but limit enforcing patent rights against users following the license terms. This means a patent owner can restrict the use of their invention in proprietary software but has limited control when it’s used within open-source guidelines. 

Some companies patent innovations within their open-source projects to protect their work from competitors while supporting the open-source community. For example, Google has patented technologies in its open-source Android platform to protect its investments while still encouraging broader use and development. 

Patents can serve as a defensive tool against competitors who might use open-source contributions for commercial gain without proper credit or compensation. By holding a patent, developers or organizations can ensure that any misuse or appropriation of their work can be challenged in court, thus preserving the integrity of their innovation. 

Difference between Open-Source Software Patents vs. Licenses 

There’s often confusion between patents and open-source licenses. While licenses define how the software can be used, modified, or redistributed, patents protect the actual invention or unique methods behind the software. A patent gives the holder the right to exclude others from using the invention, even if the software is distributed under an open-source license. Therefore, a company can release software under a permissive OSS license and still hold patents that restrict specific uses of the underlying technology. 

Patents and open-source licenses can work together. A company can share open-source software to encourage collaboration while patenting unique features to stay competitive. This approach lets them benefit from open-source contributions while protecting key innovations. 

Obtain Patent for Open Source Software? 

Obtaining a patent for software distributed under the GPL (General Public License) can still make sense, despite limitations. The GPL doesn’t prevent a programmer from securing patents on their innovations, but it does restrict enforcement of those rights. Under the GPL, patented features must be freely licensed to all users, preventing the program from becoming proprietary. Essentially, the patent can be used against competitors outside the GPL framework, but not against those using the patented software under the GPL license (#OpenSourceSoftware Meets #PatentLaw: The Blueprint to Success for Tech Entrepreneurs, n.d.-b).While the author cannot assert patent rights against those who redistribute GPL software, they may still patent it for several reasons: 

1. To generate revenue by licensing the patent. 
2. To enforce rights against redistributors who violate GPL terms or open-source license terms. 
3. To use the patent defensively or offensively against competitors using non-GPL software. 
4. To distribute a non-GPL version of the software where patent rights can still be enforced. 
5. Patents can prevent closed-source appropriation appropriations where companies take open-source code, modify it, and release it as proprietary software. Patents can block the unauthorized use of patented features in closed-source systems. 
6. Patenting OSS components adds significant value to a company’s IP portfolio, which can attract investors and increase market valuation. 
7. APIs allow different software to work together. Patenting APIs, especially in open-source projects, helps companies protect their innovations and prevent competitors from restricting access to important interfaces. 

For example, large companies like IBM, and Google patent open-source innovations to use them for defensive or offensive IP strategies. Although open-source software generally reduces costs and development time, users should carefully evaluate licenses and screen for potential patent risks to avoid infringement claims.  

Patent Rights of the Author  of Open-Source Software  

If the software is released using any Open-Source licensing or GPL licencing, author is not prohibited from applying for patent protection. Author can apply for patent protection if the piece of software is modified and the software is released using the GPL. However, the protection will be less that the protection gets from the standard patents.  

The GPL’s preamble states that software patents pose a threat to free programs, and addressing this issue requires granting users the freedom to use the software as they wish. Normally, a patent allows the owner to restrict how their invention is used. However, when software is released under the GPL, the author essentially gives up the ability to enforce their patent rights, allowing users to modify the original software without the author’s interference. 

If the creator of GPL software has a license to use patented technology, they might be allowed to provide sublicenses to others. However, the GPL prohibits distributing the software if the author doesn’t have permission to offer sublicenses. This means that patented technology can’t be included in GPL software if the author can’t grant sublicenses or if doing so would require paying royalties. It’s crucial to check if an author has the right to sublicense when their software uses patented technology. 

Open Source Software and Patent Infringement 

There are many misunderstandings about OSS and patents. Some developers believe software should not be patentable, and they point out that, for example, the European Patent Convention (Art 52 (2) (c)) states that patents cannot be given for computer programs. In the U.S., courts have ruled that patents cannot cover “abstract ideas,” which has led to many software-related inventions being denied patent protection. However, over time, it’s been agreed that software running on a computer that brings a new and inventive technical solution can still be patented, even if it’s open-source. 

This means that an open-source program can infringe on a patent just like proprietary software can. Infringement doesn’t have to be for profit; it can occur through making, using, selling, or distributing the patented invention (see 35 U.S.C. § 271 in the U.S. or Art 64(3) EPC in Europe). The infringement can be direct (e.g., the programmer making the software) or indirect (e.g., distributing it to others who use it in an infringing way).

Many open-source projects may technically infringe patents, however, no community-led open-source project has been sued for it. There are several reasons for this. First, community projects usually have no assets, so winning a lawsuit would gain nothing. Second, the nature of open-source licenses makes enforcing patent licenses difficult or pointless. Damages would also likely be minimal because there’s no profit to show or only a tiny licensing fee.

However, if open-source software is integrated into a commercial product, patent holders might be more interested in enforcing their rights. In this case, selling the commercial product or offering it for download could count as a violation, making it worthwhile for the patent owner to pursue legal action against the company distributing the software.

To sum up, the rise of OSS has revolutionized software development, offering new opportunities and challenges for IP protection. By strategically combining open-source licenses with patent protection, companies can foster innovation while safeguarding their proprietary interests. Whether you’re a startup or an established company, understanding how to balance these two IP approaches is essential for building a sustainable, competitive advantage in today’s technology landscape.

 

References 

Intellectual Property Challenges in the Digital Age – GIPC. (n.d.). Global IP Convention – GIPC. https://www.globalipconvention.com/blog/intellectual-property-challenges-in-the-digital-age 

Open Source Software Licenses Explained: A Beginner’s Overview. (2023, December 15). Open Source Software Licenses Explained: A Beginner’s Overview. https://osssoftware.org/blog/open-source-software-licenses-explained-a-beginners-overview/ 

#OpenSourceSoftware meets #PatentLaw: The Blueprint to Success for Tech Entrepreneurs. (n.d.-b). Outlier Patent Attorneys. https://outlierpatentattorneys.com/patents-ip-strategy-and-open-source-software 

Raymond on Open Source – New learning online. (n.d.). https://newlearningonline.com/literacies/chapter-1/raymond-on-open-source