Key Takeaways

  • Open source patents involve balancing the protection of intellectual property with the collaborative, accessible nature of open source development.
  • While open source licenses promote transparency and innovation, patent protection can help prevent misuse, plagiarism, or commercial exploitation without attribution.
  • Open source and patent rights can coexist through careful licensing strategies such as patent pledges, defensive publications, or cross-licensing.
  • The intersection of open source and patent law has gained new importance with the rise of AI and software innovation, where both collaboration and protection are critical.
  • Creators should understand how patent ownership, licensing obligations, and derivative use affect their rights before releasing open source inventions.

Can Patent Rights and Open Source Co-Exist?

Open Source patents are a method of combining traditional patents and Open Source licensing.

A patent is a legal method for the owner of an invention to control how others use their invention. In many cases, the software is released under what's known as an Open Source license, which is the idea that anyone should be able to view and modify the source code of a piece of software.

Under an Open Source license, the person that authored the software will release their source code so that it can be modified without the need to request the original author's permission. If a company releases software using an Open Source license, it can limit the ability of the software's author to assert their patent rights. However, the decision to use Open Source licensing should not prevent the software author from seeking a patent.

When businesses release Open Source software, it is also possible to grant patent licenses to the person who receives the software, and the original owner of the patent may have little to no control over who is granted a license.

Understanding the Intersection of Open Source and Patent Law

Open source patents represent a complex but increasingly relevant intersection between intellectual property protection and collaborative development. Traditionally, patents grant exclusive rights to inventors, while open source philosophies emphasize accessibility, transparency, and community improvement. Yet these two systems are not mutually exclusive.

Many organizations—especially in artificial intelligence (AI), biotechnology, and software—now pursue hybrid strategies that combine open innovation with patent safeguards. For example, tech leaders like IBM and Tesla have used patent pledges or non-assertion covenants to encourage collaboration while still retaining ownership of their patents.

This coexistence helps balance the goals of innovation and protection:

  • Patents encourage investment by offering exclusivity to recoup R&D costs.
  • Open source licensing accelerates progress through collaboration and knowledge sharing.
  • Combined approaches allow inventors to protect core technology while promoting broader ecosystem growth.

However, inventors must carefully draft licenses to prevent legal conflicts between patent exclusivity and open source obligations. Legal clarity ensures contributors can innovate freely without risking infringement or loss of rights.

Defining Open Source Licenses

The GNU Public License, also known as the GPL, is what most people mean when they refer to an Open Source license. The GPL builds on the traditional Open Source license by requiring the release of the source code of any piece of software that is built on another piece of Open Source software.

A GPL functions as a copyright license, and when a software author releases their product using a GPL, they are licensing whoever receives the software to use it as they see fit, whether that's copying, producing works based on the original software, or distributing the software. The licensee is able to create derivative software as long as they also release their source code. According to the GPL, any modification to the original source code of the Open Source software counts as derivative work.

Common Open Source Licenses and Their Patent Implications

Different open source licenses handle patent rights in unique ways, which affects how contributors and users can interact with patented technology:

  • GNU General Public License (GPL): Requires that derivative works also remain open and prohibits imposing further restrictions. It discourages patent enforcement that would limit user freedoms.
  • Apache License 2.0: Explicitly grants a patent license to users, protecting them from potential infringement claims by contributors.
  • MIT and BSD Licenses: Offer broad freedoms with minimal restrictions but do not include explicit patent grants, leaving some risk for patent disputes.
  • Creative Commons and Open Source Hardware Licenses: Increasingly applied in hardware and design projects to balance sharing and protection.

Understanding these differences helps inventors choose a license compatible with their patent strategy. A poorly aligned license could inadvertently surrender patent rights or expose contributors to infringement risks.

Patent Rights of the Author or Modifier

If you release software using the GPL or other form of Open Source licensing, you are not prohibited from applying for patent protection. You can even apply for patent protection if you modify a piece of software released using the GPL. However, the protections that you receive will be significantly reduced than what you would get from a standard patent.

In the preamble of the GPL, it is claimed that free programs are threatened by software patents, and that stopping this threat requires that software users be licensed to use the software however they see fit. When a patent is granted, it is the law that the owner of the patent can limit the use of their invention. This indicates that if the software is released using the GPL, the author has relinquished their ability to assert their patent rights and that the original software can be modified by the end-user without the author being able to stop the modification.

Risks and Challenges in Open Source Patent Management

The decision to combine open source distribution with patent ownership introduces several legal and practical challenges:

  1. Loss of Exclusivity: Once software or technology is made publicly available, it may be difficult to assert patent exclusivity against derivative uses.
  2. Patent Trolls and Infringement Claims: Open source projects can be targeted by non-practicing entities (NPEs) seeking to exploit gaps in licensing coverage.
  3. International Variations: Patent laws differ globally—what is permissible in the U.S. under GPL may not hold under EU or Asian IP frameworks.
  4. Licensing Conflicts: Contributors may inadvertently violate existing patent licenses if they integrate protected technologies without sublicensing rights.

Companies often mitigate these risks through defensive publication (publicly disclosing innovations to prevent others from patenting them) or cross-licensing agreements that reduce litigation exposure.

Reasons Why Would Anyone Want to Obtain a Patent on an Invention that is going to be Distributed Under the GPL

There are several reasons that a software author may want to obtain a patent for software released using the GPL:

  1. The author may want to license their patent in order to generate revenue.
  2. The author may wish to retain the ability to bring litigation against users that don't follow the terms of the GPL.
  3. The author may want to assert their rights against infringers.
  4. The author may intend to release a version of the software that doesn't use the GPL.

Strategic Benefits of Holding Open Source Patents

Although open source software promotes freedom of use and modification, holding a patent can provide strategic advantages:

  • Protecting Against Misuse: A patent can deter others from using the invention in ways that violate the open source spirit or license terms.
  • Encouraging Industry Standards: Patent owners can set usage standards that promote interoperability while maintaining attribution.
  • Facilitating Partnerships: Patented open source technologies often attract corporate partners seeking assurance of legal stability.
  • Monetizing Innovation: While the core code may remain open, patents can support related commercial applications, consulting, or proprietary extensions.

In essence, open source patents allow inventors to share innovation broadly while maintaining leverage to guide its ethical and strategic use.

What if the Original Author or Modifier is a Patent Licensee Under an Existing License?

In some cases, the author of GPL software has the ability to provide sublicenses, and the author might have the ability to include technology that has been patented in their GPL. The software cannot be distributed if the author has not been granted the ability to give sublicenses. Distributing software without sublicenses is expressly forbidden by the terms of the GPL.

If sublicensing would require that the licensee pay royalties, or if the author is not allowed to grant sublicenses, then it's not possible to include patented technology in the GPL. It's important to carefully review an author's ability to sublicense if the technology in their software is already subject to a licensing agreement.

Best Practices for Balancing Open Source and Patent Protection

Navigating open source and patent law requires deliberate planning and documentation. Legal best practices include:

  • Conducting a patent clearance search before integrating third-party code.
  • Reviewing license compatibility when merging open source and proprietary elements.
  • Implementing a patent policy for contributors that defines ownership, use rights, and disclosure obligations.
  • Considering patent pledges—public commitments not to enforce patents against users complying with open source terms.
  • Seeking legal counsel to draft clear licensing terms and avoid inadvertent infringement.

Companies like Google and Red Hat have pioneered open patent initiatives that encourage community-driven innovation while maintaining responsible IP control. Adopting similar frameworks can help startups and developers avoid legal pitfalls while promoting sustainable innovation.

Frequently Asked Questions

  1. Can an invention be patented if it uses open source code?
    Yes. You can patent an invention that uses open source components as long as the patent claims cover novel, non-obvious features and comply with license terms.
  2. Does releasing code under GPL give up my patent rights?
    Not necessarily. You can still hold a patent, but GPL terms limit how you enforce those rights, ensuring derivative works remain open.
  3. What’s a patent pledge in open source?
    A patent pledge is a voluntary commitment not to assert certain patents against users who comply with open source licenses—used by companies like Tesla and IBM.
  4. Are open source patents relevant to AI models?
    Yes. Open source AI frameworks often blend shared code with proprietary patents, requiring careful licensing to protect algorithms and datasets.
  5. How can businesses protect open source innovations legally?
    Through a mix of defensive publications, patent filings, and clear contributor agreements defining ownership, licensing, and usage rights.

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