Open Source And Patents: Everything You Need to Know

Open Source licenses and patents give software developers two very different ways to share their work. 

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.

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.

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.

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