Key Takeaways

  • Open source patents sit at the intersection of intellectual property and public collaboration, balancing innovation with accessibility.
  • Developers can patent core functionalities while still releasing software under open source licenses that specify usage rights.
  • Disclosure of source code can affect patent eligibility, so timing of patent filings is critical.
  • Open source licenses, such as the GNU GPL or Apache License, may include reciprocal patent clauses protecting contributors and users.
  • Strategic patenting in open source environments can foster innovation while preventing misuse of shared technology.

With an Open Source license, the original owner still retains distribution and sharing rights, but anybody can look at and modify a program's code and software. It's important that you understand the difference between patents, copyrights, and Open Source licenses to ensure your work is adequately protected.

What Is the Difference Between a Software Patent and Copyright?

Unlike the holder of an Open Source license, the owner of a patent has exclusive rights over the patented software. No one else can make, use, modify, or sell patented software, and the source code is not available to the public.

Patent rights give the holder control over who uses software and for what purpose. Though software developers can protect their work using both copyrights and patents, copyrights only protect the code itself. Patents, however, protect the program's functionality.

Patents are better than copyrights for software developers because they protect the program regardless of the code and language used. In comparison, copyrights aren't very practical for developers. If you want to release Open Source software while retaining some rights, a copyright only gives you power over someone who steals your work verbatim.

This is because a copyright doesn't protect the specific function of a software program. If a person finds a way to execute the same function using different code or a different language, the original creator of the software won't have any recourse with a copyright alone.

By securing copyrights and patents, software developers have some flexibility for their protections. For example, the software owner can grant users unlimited rights, some rights, or deny rights to use the software. Moreover, if a developer wants to release their work with an Open Source license, they can do so with a patent or copyright to retain some rights. This ensures that other users only access and modify the work under certain conditions.

Patents for software, however, do have their limits. Be mindful of the following before moving forward with a patent:

  • Patents protect the program's function but not the code.
  • The filer must define the process that the patent protects in the patent application.
  • Patents protect software only in terms of strict liability.

Also note that a copyright protects your code from being lifted by another user, but you don't have to officially register to enjoy these protections. However, people still file copyrights to enjoy other benefits, such as retaining official proof of ownership.

The Relationship Between Open Source and Patents

Open source software and patents share a complex relationship. Patents provide exclusive rights to an inventor, while open source encourages collaboration and transparency. However, these concepts can coexist if managed carefully. A developer can patent innovative software methods or systems and still release the implementation under an open source license, allowing others to use or improve it under defined conditions.

The critical challenge arises when code is published before filing for patent protection. Public disclosure—even through an open source repository—can jeopardize the novelty required for patent approval. To avoid this, many companies file provisional patent applications before publicly releasing code. This allows them to retain ownership of the core innovation while supporting open collaboration.

Major tech companies like Google and IBM have successfully patented open source technologies while still fostering public innovation. Their approach typically involves protecting foundational methods while allowing open community contributions under reciprocal or defensive patent terms.

What Is an Open Source License?

Distributing software under an Open Source license allows anyone to view, use, and modify the code behind the computer software. Users may modify the source code without permission, but the developer can exclude them from publishing their changes or only permit additions under certain conditions.

An Open Source license may affect some patent protections, but a person can still apply for patent rights to safeguard their software. If you want to retain some patent protections while still sharing your work with others through an Open Source license, consider working with a patent attorney to confirm that you have the protections you need.

Most Open Source licenses also include a reciprocal patent agreement. This agreement outlines things like rights granted in perpetuity, whether recipients can redistribute the work, and the conditions that they must meet when they do distribute the work. It also ensures that the protections a license provides extend to the contributions that people make to a project.

Patent Clauses in Open Source Licenses

Many open source licenses include clauses that directly address patent rights. These patent provisions aim to ensure that contributors and users are not later sued for using, modifying, or distributing the licensed software. Common examples include:

  • Patent Grants: These automatically give users the right to use any patents embodied in the software. For example, the Apache License 2.0 explicitly includes a patent grant to prevent contributors from later asserting patent rights against users.
  • Patent Retaliation Clauses: Found in licenses like GPLv3, these clauses revoke a user’s rights under the license if they initiate a patent lawsuit over the same software.
  • Reciprocal Patent Licensing: Ensures that any improvements or derivatives made by contributors are also shared under the same patent terms, maintaining the spirit of open collaboration.

Understanding these clauses is essential before releasing or using open source software, as violating a license’s patent conditions can lead to termination of rights and potential legal exposure.

What Is the Gnu Public License?

The Gnu Public License (GPL) is an Open Source license stipulating that any distributions of the licensed software are also protected.

The GPL provides a list of copyright protections to the original software developer. However, the license permits other users to copy and distribute the software and make and publish works based on the software. In turn, users must release their changes under the GPL and make the adjustments in their source code available to other users.

Many companies and popular software programs, such as the Linux operating system, use the GPL. This gives users access to a vast body of knowledge from other developers and incentivizes them to continue improving the software.

Balancing Innovation and Open Access

Navigating patents in open source environments requires a balanced intellectual property (IP) strategy. Companies and developers can combine open collaboration with IP protection through a few key practices:

  1. Early Patent Filing: File a provisional patent before public disclosure of source code to preserve novelty.
  2. Selective Patent Protection: Patent the core innovation (e.g., algorithms or systems) but keep implementation open.
  3. Use of Defensive Patents: Maintain patents not for litigation but to prevent competitors from closing off shared innovations.
  4. Dual Licensing Models: Offer both open source and commercial licenses—allowing open access while monetizing proprietary uses.
  5. Internal IP Policy: Establish clear internal policies for employees contributing to open source projects, ensuring that patent rights remain consistent across all contributors.

Adopting a thoughtful IP strategy helps innovators safeguard their work while contributing to the global open source ecosystem. For example, open source AI frameworks like TensorFlow and PyTorch are distributed under licenses that balance open collaboration with corporate patent protections.

If you’re considering filing patents while contributing to open source projects, consulting a patent attorney can help ensure your innovations are both legally protected and ethically aligned with open source principles. You can find a qualified attorney through UpCounsel’s marketplace, which connects clients with experienced patent lawyers from top law schools and tech backgrounds.

Frequently Asked Questions

1. Can open source software be patented?

Yes, the underlying invention of open source software can be patented if it meets the requirements of novelty, utility, and non-obviousness. However, public disclosure of the code before filing may invalidate patent eligibility.

2. What happens if I release code before filing a patent?

Releasing your code publicly can constitute prior art, preventing you from obtaining a valid patent in many jurisdictions. File a provisional patent before disclosure whenever possible.

3. Do open source licenses protect against patent lawsuits?

Some licenses, such as Apache 2.0 and GPLv3, include patent protection clauses that prevent contributors or users from suing each other over patent infringement claims related to the software.

4. Can a company use both open source and proprietary licensing?

Yes, through dual licensing. This allows a company to distribute the same software under an open source license for public use and a commercial license for private or enterprise customers.

5. Why are patents important in open source development?

Patents can prevent misuse or monopolization of shared technologies, helping maintain fair use and promoting continued innovation across industries.

If you need help with Open Source licensing and patents, you can post your legal need on UpCounsel's marketplace. UpCounsel only accepts the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.