TAKEAWAY: Incorporating open source software code into a product may save time and money, and prevent certain patents from being enforced against the product. However, doing so may also limit certain patent rights otherwise available to the software owner.
“Open Source” is a title often applied to software from which the original source code is made freely available and is permitted to be redistributed and modified. Such a free license to use, modify, and distribute software is often appealing to companies and developers looking to save time and money, but these free licenses are rarely free of strings.
In order to receive these benefits, software owners are usually required to enter into a license agreement. Almost all open source licenses limit the patent rights of the open source licensee (i.e., the company that incorporated the open source software). Typically, such licenses include clauses requiring the licensee to grant licenses to their related patents. Some open-source licenses include provisions that revoke the open source licensee’s right to use the licensed software if the licensee brings a patent suit against anyone at all. This can significantly limit an open source licensee’s right to exclude others from the market unless the licensee is willing to remove the open source code from their source code. Thus, if the company or even just one developer uses open source code for even a minor aspect of the product, the product may lose certain patent rights and the ability to stop others from using their novel software.
Recent articles claim that making software available via open source will protect software owners from patent infringement suits. This can be misleading. The misconception stems from a common open source policy to not enforce patents against software that is available via open source. This policy protects only against patents that are owned by entities participating in such a policy, but does not protect against every patent. Thus, agreeing to distribute software via open source may significantly limit patent rights without sufficiently mitigating the risk of patent infringement suits.