Open-Source & Patent Rights – Can They Co-Exist?

BlogIntellectual Property RightsPatent    March 9, 2022
Open-Source & Patent Rights – Can They Co-Exist Posted On

A patent is a form of Intellectual Property (IP) granted to the owners of an invention or innovation, giving them the right to control how others could use or exploit their invention or innovation.

At present, the software, in many cases, is released under what’s widely known as an ‘Open-Source License,’ which corresponds to the idea that anyone can view and modify the source code of a particular piece of software. As part of an open-source license, the owner of the software releases his source code so that it can be modified or altered without the need to request his permission. If a business company releases its software via open-source licensing, it can limit the company’s ability to assert its Patent Rights. In this case, it becomes essential to note that the decision to go ahead with open-source licensing should not prevent the software owner from seeking Patent Protection.

When business companies and firms release open-source software, it is also possible to grant patent licenses to the individual or third party receiving the software. In that scenario, the original owner of the patent may have little to no control over the individual or third party who is granted a license.

Open-source patents combine the concept of traditional patents and open-source licensing.

In the present fast-paced world, there seems to be a split between two groups of people possessing an entirely different set of ideologies when we talk about the proprietorship of technology and the future of innovation. The first group is those of open-source evangelists and the second belongs to the pro-patent capitalists.

When it comes to open-source evangelists, they opine that knowledge related to new and emerging technologies and technological innovations should be shared freely and made available to anyone and everyone who is looking forward to using them fairly and rightfully. The prime idea behind this concept is that it can potentially push development and innovation in the emerging sectors much faster and farther, in contrast to the knowledge safeguarded in proprietary patent rights held by individuals or firms.

Over the past few years, many forward-thinking companies and skilled individuals have shown considerable support and appreciation towards this cause. For instance, tech giants like Apple and Google have contributed significantly to the open-source community. Android, the mobile operating system residing on many smartphones presently, was open-sourced by Google. Swift, a multi-paradigm, general-purpose, and compiled programming language initially proprietary to Apple Inc., was open-sourced by Apple Inc. only. The outcome of all this is evident today in the extensive adoption and innovation built upon such widely recognized open-sourced technologies.

Advantages of Open-Sourcing

  • Open-sourcing enables multiple companies to freely use and customize the new technologies to provide a unique user experience. Consequently, they have now become the catalysts for competitive advantage and differentiation. The new contributions of many innovators to the open-source community are appreciated extensively. Such contributions save a lot of time and effort of millions of other inventors and innovators who put their best foot forward to build greater and better things on top of the said technologies. Nowadays, many individual inventors and innovators are being wholeheartedly rewarded by fans and admirers in the open-source community for their completely voluntary donations. It not only helps such innovators and inventors in sustaining financially but encourages them to continue contributing to the open-source community.
  • Furthermore, open-sourcing immensely helps companies and firms in tackling patent trolls. Open-source repositories such as GitLab and GitHub that are publicly available and verifiable have proved to be crucial resources in invalidating troll patents. Therefore, it won’t be wrong to admit that open-sourcing new technologies helps propagate mass adoption and innovation in emerging sectors for the considerable good of moving humanity forward.

However, not every individual agrees with these advantages.

  • Pro-patent capitalists opine that in the ongoing highly competitive working environment, it is imperative to safeguard your IP assets and prevent the competitors in the market from blatantly copying or stealing your ideas and innovations. Additionally, they strongly believe that because of the presence of open-source patents, there won’t be any incentives for innovations, no added advantage to the innovator (be it an individual or a company), and all the time, money, and effort invested in the R&D would be an unnecessary endeavor.
  • Pro-patent capitalists believe that business companies and firms invest an enormous amount in obtaining patent protection for their inventions and innovations to enforce their patent rights against infringing entities and safeguard themselves from other competitors and patent trolls. In this scenario, obtaining patent protection may be a wise decision. Given the present competitive nature of businesses, such concerns raised by pro-patent capitalists are valid.

Bringing the Two Worlds Together

  • A third group has recently come into the picture, putting in a genuine effort to bring the two groups described above together by taking a more holistic view of what lies in the collective best interest. They believe in open-sourcing their patented inventions for use and modification under well-defined clauses, terms, and conditions. In simple terms, an open-source license allows an individual (i.e., the licensor) to use, alter, and/or commercialize the patented invention on a specific condition according to which the licensor shall never take any legal action against the licensee at any point of time in the future, and vice versa, which says that even the licensee shall agree to never take any legal action against the licensor, thereby building two-way trust and staying loyal to one another.
  • In addition to the goodwill and trust factor, open-source patents can help innovative companies save a colossal amount of money in the coming years. The reason behind the same is that patent lawsuits are exceedingly costly affairs and usually last for several years. Therefore, we can say that open-sourcing patents under well-defined conditions can help business companies protect themselves adequately while contributing significantly to the open-source community.

Bottom Line

Opting for open-sourcing patents is undoubtedly a business decision, and its benefits, relevance, and usefulness may vary from one sector to another. The concept may not be helpful in exceedingly competitive sectors like consumer electronics, where it is pretty simple to imitate and manufacture products and defeat any competition purely based on the price. However, on the other hand, open-sourcing patents may be exceedingly valuable for new and emerging technologies like solar and nuclear fusion technologies, space technologies, AI-based technologies, battery and sustainable transportation technologies, robotics, healthcare, and medical technologies. Open-sourcing patents in all the previously mentioned emerging technologies may ensure that innovation in such sectors can progress and flourish unbridled by patent lawsuits, restrictive patents, and unhealthy competition. As a matter of fact, all strategies and tactics around open-sourcing and patents are in play, and the coming future is open to all types of possibilities. ✅ For more visit:

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