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Open Source and Patents: Share Your Cake and Eat It Too

By Joseph Simon-Brown By Clive So
Open Source and Patents: Share Your Cake and Eat It Too

The open-source movement has been around for decades and has provided freedom to users and programmers to use and develop existing software. Unlike industries involving physical products, the low barrier of entry to software development and distribution has meant that many users find themselves having the knowledge and resources to contribute to software development, but at times prevented from doing so due to existing intellectual property (IP) rights. This has led some to view IP rights, such as patents, as a hindrance to innovation.
However, this need not be the case, and there are very good reasons why, as an open source contributor, you should consider obtaining patent protection.

What is a "software patent"?

Patents are granted to offer monopoly rights for technological inventions in exchange for public disclosure of the invention. A granted patent allows the patentee to stop others from making, selling and using the invention, irrespective of whether copying was involved.

Software code (e.g. source code, object code, etc.) per se is not patentable. What "software patent" is taken to mean, broadly, is a patent for the underlying method implemented by the software, and the underlying method is subject to all the usual requirements of patentability, such as novelty and inventiveness. The patentability of computer software is further circumscribed, for example, by a requirement that the underlying method solves a real-world problem. Therefore, for example, a chess-playing algorithm might not be patentable, whereas a data encryption algorithm probably is.

The software code itself automatically gives rise to copyright for the author. Unlike patent infringement, however, copyright infringement requires copying.

Therefore, if someone writes a computer program independently from scratch, no copyright can be infringed, but there may be patent infringement if the program implements a method protected by a patent.

What exactly is offered under an open-source licence?

In principle, subject to any pre-existing agreements, the author has complete freedom to define the scope and terms under which their contribution is offered to the public. However, many opt instead to use one of many standard open-source licence texts for convenience and familiarity.

The coverage of the licence can vary significantly depending on the terms. In addition to clauses about copyright, some licences also include grant of a patent licence.

The scope of any included patent licence is likely to be limited. For example, an open-source licence may grant a patent licence only to the extent that the licensee may use and develop the software code offered under the licence. That is, the licence probably does not extend so far as to permit the licensee to independently develop and distribute computer software which is covered by the patent. Furthermore, the grant of the patent licence is usually conditional on the licensee's adherence to the other terms of the open-source licence.

Why might an open-source contributor want a patent?

A patent may allow the author to stop others from exploiting their code without adhering to the terms of the open-source licence. For example, the licence may prohibit distributing an improved version of the code without making the source code available, or prohibit embedding the code in locked hardware.

A patent may allow the author to stop others from circumventing the open-source licence by independently developing new code which implements the same underlying method.

A patent gives the author flexibility to generate revenue from users who do not wish to be bound by the open-source licence, all the while without hindering open-source innovation. For example, a commercial user may prefer to license the software outside an open-source licence for fear of the open-source licence over-reaching to their own proprietary components.

A patent preserves the ability to commercialise future iterations of the software. Similarly, the author may develop different variants of the software and choose to offer only some of them to the public under an open-source licence.

In conclusion, a patent provides additional control over the software and the underlying innovation - it is entirely up to you, as the patentee, how this control is exercised. Using patents, it is possible to construct a strategy whereby open-source innovation is encouraged without irreversibly forgoing all future possibility of earning a fair reward or allowing others to unfairly benefit from your innovation. You can share your cake and eat it too.

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