Given that a software patent can be implemented in different ways, languages and platforms then what are the license requirements of the implemented pieces of software?

Is it possible that the patent owner releases an open source implementation or this would necessary invalid the patent rights because open source licenses grant freedom of use, distribution and modification?

Since Apache License allows to distribute derivative works under a proprietary license, then is it compatible with the patent rights to build an implementation of the patent software as a derivative work from a piece of software released under Apache license? What about the mandatory copyright notices?

Is there a difference in this regard if instead of a derivative work as a whole an extension module is released? In this case the proprietary module wouldn't work without the Apache license parent application, but isn't it almost the same when somebody releases a proprietary application in PHP (the application wouldn't work without the under running open source PHP interpreter)?

What is the best license to release an implementation of a software patent to not interfere with patent protection?

  • If a person allowed to grant licenses grants an open license on some part or the complete scope than that part would still be protected, but at the same time licensed to everyone who uses it according to the open license. So the protection would basically be nullified. I guess there is no "best license", just make sure that you are okay with losing the (part of) protection that you give away as an open license and check what part that is before doing so. – DonQuiKong Dec 14 '16 at 20:27
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    Maybe its just me, but this question seems to mix licensing and patents together in an almost incomprehensible way. Software patents aren't language specific. – Eric S Mar 22 '17 at 2:17
  • A patent could have claim wording that restricts it to a particular s/w environment or language. A quick search shows about 5000 with the word "java" in a claim. Example - "18. The computer system according to claim 11, wherein the browser plug-in, the terminal service and/or the control agent can be implemented by any one of VNC, Windows remote desktop, XWindows or Java technologies." – George White Jun 13 '17 at 21:51
  • It may be worth noting that copyright does not cover "any idea, procedure, process, system, method of operation, concept, principle, or discovery" described in the original work of authorship -- those would be covered by patents, if any. 17 USC § 102(b). Having a copyright license is not the same as having a patent license. – Upnorth Jul 28 '17 at 21:28
  • @GeorgeWhite Your example claim is a dependent claim. My guess is the referenced independent claim doesn't specify the language. – Eric S Nov 28 '17 at 2:25

This question is mostly about copyright licenses.

Method patents (in theory) allow their owners to exclude others from implementing their claimed processes. If an implementation is by a computer running software, any of an infinite number of source code designs using any appropriate programming language can cause the computer to perform the infringing process. It is possible for somebody to be totally unaware of the patent or any other implementations and still write a program that would cause infringement of the patent.

From a copyright perspective, any particular source code implementation is a work of art. The right to make and use a copy of the code is owned by its creator unless the creator has agreed to have been hired to create it or the owner sells the copyright. The owner of a copyright can grant one or more others parties permission to make and use copies as a license. Licenses can have any kind of conditions that the copyright owner wishes to place on the use of the art work (source code in this case).

An open source license is how a copyright owner can grant permission for anybody to make and use copies of source code under certain conditions. For example, a condition can be that the users may only use the code as written without making modifications. Another condition could be the users may only use the code for non-commercial purposes. Another type of condition is that modifications are allowed but any modifications must also be granted to the public as an open source license under the same terms.

Designing the software in a way that supports extensions, such as an interpreter, is a way to allow the main program and extensions to be provided under different licenses with different conditions.

There are many standard open sources licenses. Apache is one. However, there are even multiple versions of the Apache license. Some open source licenses even require licensing rights other than copyrights, such as patent rights that would cover the processes performed by a computer running the code.

What license is best for providing a piece of code as open source depends a lot on the business goals of the copyright owner. That potentially includes the goal of preventing others from making a business using the code. Some lawyers have a specialty in understanding and advising on open source licenses.

  • Licensing and copyright are off topic for this site. I appreciate your trying to answer the question, but we generally try to discourage answering off topic questions and attempt to direct them to more appropriate SE sites. – Eric S Nov 27 '20 at 13:25

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