What is an open source?

An Open Source Software (OSS) is a term originated from the software industry to imply a software which is released under a license through which the copyright owner grants users the rights to use, study, change, and distribute the software as well as its source code.  The Open Source code is different from ‘Publicly Accessible code’, which can be proprietary. An Open Source code has an Open source licence and the usage of the open source code is in accordance with the licence.

What is an Open source license?

An Open-Source license (OS license) is a license granted for a software and other products which allow for the source code, blueprint or design of the said software to be used, modified and/or shared under pre-defined terms and conditions. Usually, an OSS is released under an OS license which serves as a legal agreement between the OSS author and the end-user.

What is a Patent right?

A patent gives the owner of the patent or a patentee, the right to exclude others from making, using, and selling his/her invention thereby, giving an absolute control over the use of his/her invention.

In contrast, the primary idea behind distributing software under an OS license is for anyone to be able view and use the “source code” of the computer program as well as modify the same for one’s own purposes.

One of the most frequently referenced OS license is the Gnu Public License (GPL) which is a license of copyright rights owned by the original author of software. When an author releases his software under the GPL, he may licenses the said software to those who utilize the software to copy, distribute, and produce derivative works of the software, providing that they then, in turn, release the software and their derivative works under the GPL and make the source code of the software and the derivative works available to the public. For example, the Linux OS is distributed under the GPL. Hence, anyone can obtain the source code for the same and can modify the software as long as they distribute the modified software under the as GPL.

Can Patent Rights and Open Source Co-Exist?

Yes. Patent Rights and Open Source can be said to co-exist in two ways:

  1. An author of an OSS may apply for a patent for that OSS *
  2. An invention using an OSS modification may be included/specified in a Patent application.

Why an author of an OSS, who is willing to publically share the code of their software, would want a patent for it at the same time?

There are several reasons that a software author may want to obtain a patent for software released using an Open Source license, as the author may:

  • wish to license their patent in order to generate revenue or produce a revenue stream;
  • want to assert their rights against infringers;
  • intend to release a version of the software that doesn't use the Open Source license; and
  • want to retain the ability to bring litigation against users that don't follow the terms of the Open Source license.

Can another invention using the OSS modification can apply for a Patent?

A person can apply for patent protection even if he/she modifies piece of software, which was released using an Open Source license, to invent something novel. However, the protections that the person receives will be significantly reduced from what they would get from a standard patent.

Conclusion

Open source has become a way of working that is beyond mere copyright production. Innovations accelerate when ideas are shared, when they are collaborative, open, and modifiable.

When a patent is granted, it is the law that the owner of the patent can limit the use of its invention. However, There is no such thing as a worldwide patent. Patents are granted on a country-by-country basis. If the distribution and/or use of the Software program are restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under the OS License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded.