Take the 2-minute tour ×
Ask Patents is a question and answer site for people interested in improving and participating in the patent system. It's 100% free, no registration required.

I just read that under BSD, Apache, and MIT Licenses, one can use, modify and redistribute source code in a product as long as credit for the open source portion is given back to the the author. That seems clear (and significantly different from GPL).

However, is it legally acceptable to try and patent a piece of software if that software uses a BSD Licensed open source file as library (or support) code?

Edit: Not asking if one can patent the open source (BSD Licensed portion) rather the unique software that was written on top of the open source. Can that be patented?

share|improve this question
add comment

3 Answers

up vote 6 down vote accepted

First, the patent system doesn't care about software licenses. Conversely, copyright doesn't care about patent licenses (it's automatic anyway). The only place where patents and copyright might interact is in licenses, which are contracts which might grant someone additional rights that they would not have given the restrictions imposed by patent and copyright laws (such as the right to perform a patented method or to distribute a piece of software).

Second, you can't patent a piece of software. Generally speaking, what is patented is not a device as such, but the way the device works. For example (prior art aside), you don't patent a Ford Model T, you patent a vehicle on four wheels, or a piston engine, etc. When it comes to software, what is really patented is the algorithm. See What constitutes an original patentable idea in software? for a more in-depth treatment.

If you write a program that uses a novel algorithm, you may patent the algorithm. You must file the patent before you distribute the program, under any license (in the US, you have a 1-year grace period in some circumstances). The GPLv3 is a contract where the copyright holder declares that he will not enforce any patent that the software may relate to (I'm simplifying somewhat but that's the gist of it). Other licenses, including older versions of the GNU GPL, do not preclude having patents.

Note that it is possible to unknowingly write software that violates a patent, for example if the author independently rediscovered an algorithm. Thus even the GPLv3 does not guarantee that a piece of software is unencumbered by a patent, only that it is unencumbered by patents assigned to the grantor of the license.

share|improve this answer
    
Algorithms are NOT patentable, but software is, as a method, as a system, or as an article of manufacture. –  Louis Iselin Nov 6 '12 at 22:17
1  
@LouisIselin The method in a piece of software is an algorithm. –  Gilles Nov 6 '12 at 22:20
    
What we have here is a failure to communicate. An algorithm is an idea for a process flow that can be performed in your head and is not patentable. Software is a set of instructions that when carried out by a computing device causes a method to be performed. Software may be patentable, depending on how it is claimed. –  Louis Iselin Nov 14 '12 at 0:20
add comment

The question is not "Can I patent it?" (you certainly can), but rather, "Does the license require me to do anything particular with the patent?"

The BSD and MIT licenses don't mention patents at all. Therefore, you have no patent related obligations under them.

The Apache 2.0 license does include an explicit patent grant. If you contribute any code to the Apache licensed library, you grant "a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work..." This only applies to the library itself - that is, code you agree to distribute under the Apache license. It does not apply to other code you use in the same program. (Anyway, that's my reading of it. I'm not a lawyer.)

Other licenses have other terms. The GPL, as you noted, goes further. Merely using a GPL library in your program could require you to give a free license to any patents involved in any part of the program.

share|improve this answer
    
VERY interesting. And helpful- thank you. –  Chris Oct 31 '12 at 18:15
1  
An important conclusion here for anyone distributing their software as open source: If we're working within the current patent system that, de facto, allows software patents, it is important to choose an open source license model that includes consideration of patent rights. –  Dennis Crouch Nov 1 '12 at 11:24
add comment

The short answer is YES. The question asked if you can patent software that uses open source libraries or files as support. There are no restrictions on what you use as support to meet the patentability requirements of Title 35 of the US Code.

share|improve this answer
    
Very good to know, thank you! –  Chris Nov 6 '12 at 23:18
add comment

Your Answer

 
discard

By posting your answer, you agree to the privacy policy and terms of service.

Not the answer you're looking for? Browse other questions tagged or ask your own question.