Open source software licenses are primarily copyright licenses, granting licensees the rights to copy, modify and distribute computer code. However, there are significant patent issues that can arise with open Source Software licenses. These issues can include express and implied patent license grants in open source software licenses, patent assertion retaliation clauses, and litigation strategies and tactics. Also, it is a common misconception that open source software cannot be patented.< > An open source licenses grant broad rights to modify, compile, distribute, and use the software. In contrast, a patent gives its owner the right to exclude others from making, using, and selling the claimed invention.
An open source licenses grant broad rights to modify, compile, distribute, and use the software. In contrast, a patent gives its owner the right to exclude others from making, using, and selling the claimed invention.
The Sound View Innovations had launched patent attacks against commonly used open source software including jQuery and Apache Hadoop . Sound View is targeting end users of these software components. This is a typical tactic of non-practicing patent assertion entities. Unlike some commercial software, most open source software is licensed with a disclaimer of any warranties regarding patent infringement. This makes it harder for end users to look to software publishers for indemnity. The interplay between patents and open source is often misunderstood.
The GNOME Foundation recently acknowledged that it was sued for patent infringement by Rothschild Patent Imaging LLC The allegedly infringing product is Shotwell, a free and open source personal photo manager.
Shotwell is licensed under GNU Lesser General Public License version 2.1 (LPGL). This license permits licensees to copy and redistribute Shotwell to others. One of the novel underlying legal questions that would need to be addressed is whether licensees who redistribute an open source program are “in active concert or participation with Defendant.”
Additionally, the LPGL license includes another patent provision that could become relevant. It states that “If, as a consequence of a court judgment or allegation of patent infringement or for any other reason, conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Library at all. For example, if a patent license would not permit royalty-free redistribution of the Library by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Library.”
This suit is noteworthy in that it is not targeted at users of the open source product, but rather the entity that oversees the development. In the prior lawsuits, the targets were typically companies using the open source.
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