Ashok K. Mannava Mannava & Kang, P.C. Open Source Software and IP February 10, 2012

Software is protectable by patents Software is protectable by copyrights IP protection can be limited by Open Source License IP Protection for Software 2

Software license is a contract between the software owner and licensee defining terms of use For Proprietary License, typically no source code provided, no permission to modify, restrictions on use and distribution, reps and warranties For Open Source License, much different terms Software License 3

Source code to software incorporating OS s/w may be required to be made available Licensee can modify software Licensee can distribute software and mods No reps or warranties; “As Is”; potential liability for patent infringement Examples of OS Licenses: General Public License (GPLv3, GPLv2), Berkely Software Distribution (BSD), Apache, Mozilla General Open Source License Terms 4

Free Open Source Software is threatened by patents You can be liable for patent infringement Protect yourself by using third-party vendor software with warranties - if using third-party vendor software, make sure you have rights to redistribute if you are incorporating into a product to be distributed to customers Open Source and Patents; Liability 5

Software owner is allowed to seek patent protection even if for GPL code GPL does not bar distribution of patented code However, GPL restricts patent rights to anyone receiving the GPL software; patentee may be required to give royalty free, non-exclusive patent license to licensee Patent license may be granted through express patent clause or may be an implied license in open source license Is Open Source SoftwarePatentable 6

Express/Implied License does not apply to competitors if they do not use patentees GPL software; keep competitors out of your market space Express/Implied License does not apply if you are using internally and do not distribute the GPL software Create Defensive Portfolio; Redhat, Google, Microsoft, HP have extensive patent portfolios even though they contribute to the open source community Generate licensing revenue for licensees not using GPL software Patent Improvements to GPL software whereby the improvements are not in the GPL software Why Patent Open Source Software 7

Ashok K. Mannava Mannava & Kang, P.C THANK YOU