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Patent Rights & Open Source Software Roger G. Brooks April 29, 2011. 2571038. Patent Issues for Software/Product Developers. Will I or my customer be subject to patent infringement attack based on open source code I have included in my product? From whom?
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Patent Rights & Open Source Software Roger G. Brooks April 29, 2011 2571038
Patent Issues forSoftware/Product Developers • Will I or my customer be subject to patent infringement attack based on open source code I have included in my product? From whom? • Is there any realistic way to quantify the patent-related risk to my open source product? • Am I indemnifying customers for patent risk relating to open source code? Do I mean to be? • How can I get my arms around patent risk created by open source code in connection with M&A transactions, product line acquisitions, etc.
Open Source Issues for Patent Owners • What code exactly am I licensing? • Am I granting “implied licenses” of uncertain scope? • What interactions with open source code result in patent license grants? • Am I undercutting my proprietary licensing program by granting zero-royalty licenses to open source implementations? • (How) can I narrow the uncertain risks to my revenue-producing patent licensing program or the defensive power of my portfolio?
Open Source Licenses:Independent Variables Affecting Patent Rights • “Do I have to use this license?”: “Copyleft” vs. “Academic” licenses • Basis of the grant: Is the patent license grant express, implied, or nonexistent? • Scope of the grant: What exactly am I licensing? • Broad: Bounded by the distribution (GPL) • Narrow: Bounded by the contribution (Apache, EPL) • Who knows? (BSD)
Apache 2.0 “Academic”/Narrow
Berkeley Software Distribution (“BSD”) “Academic”/Uncertain