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For example, let's say you invented Git. And you want to make Git completely open source. But at the same time you want to build GitHub, and patent GitHub.

I assume you first have to write a patent for GitHub, which will have to first explain how Git works. But Git is not technically a "prior art" in this case because it hasn't been invented yet. Basically you are inventing Git first, and then GitHub, but trying to secure the GitHub model in the same patent.

How would one go about handling this case?

One scenario I can think of is you could patent the entire Git and GitHub model and then later open source Git with a non revokable and completely open license, but keeping the patent attached. Or, you could clarify in the patent you are only claiming the GitHub model and not the Git model, even though the Git model is explained. But I am thinking maybe there are other ways. What would be the best way?

p.s.

I'm only using Git and GitHub as an example to illustrate the situation more concretely, not really saying I'm trying to do anything like that obviously.

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  • Git the software is not patentable. Some element of Git might be patentable, but that isn’t guaranteed. Same for GitHub. – Eric S Mar 26 at 21:59
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Or, you could clarify in the patent you are only claiming the GitHub model and not the Git model, even though the Git model is explained.

This.

You have to explain the basics for the derivative to be sufficiently discussed. Explicitly disclaiming them achieves your goal.

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There are a few cases to consider. You have developed an internal combustion engine and a hoist that uses the engine to lift ships from the water. Either or both might or might not be patentable.

The hoist might be novel whether or not that particular engine is used in it. The engine might or might be obvious over previous internal combustion engines. If the engine is patentable, and the hoist obvious, then a hoist might only be protectable due to combination with the novel engine.

You seem to want to give away freely the right to make the engine but control the making, using, selling, etc. of the hoist using that engine.

If the engine is not patentable but the hoist with the engine is, then you patent the engine + hoist. If the engine is patentable but the hoist is not then you patent the engine and license it with the exception of its use as part of the hoist. Or, like the earlier case, you file a patent that describes the engine and hoist and only has claims to the combination, even though it could have claimed the engine alone. Then there are no granted claims to the engine itself.

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Git is distributed version control system software. It is not the first distributed version control system. Software is typically protected by copyright not patents. Git as an application is almost assuredly not patentable. It is possible that some specific elements within Git might have been patentable but they would need to meet all the requirements of patentability.

GitHub is a website that provides version control services using Git. Again, it isn't unique and it is unlikely to be patentable as whole. Because your example scenario isn't really relevant, I'm having trouble figuring out how to answer the question. Perhaps you could come up with a different scenario.

I will say that something that is patented can be freely licensed if desired. You could, for instance, freely license for non-commercial usage while maintaining control for commercial uses. There are many examples of software products that are provided free for certain usage cases while maintained as proprietary for other usages.

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  • Maybe the example actually made it harder to understand than not having an example. Let me try again with another example. The WWW is an open technology and cannot be patented. But Google's pagerank model was patented. I'm talking about a hypothetical scenario where the Google founders created both the WWW and Google, but wanted to keep WWW open yet still capitalize on their invention through a proprietary layer (Google) on top of the WWW. Of course you can again say "Google was not the first search engine", but hope this example made it clear that that's not the point of my question at all. – Vlad Mar 27 at 19:56
  • Also, you say GitHub is not patentable, but I would say various components of GitHub could have been patented if they really wanted to, such as implementing a pull request social structure on top of Git. They just decided against it because it made more sense not to. – Vlad Mar 27 at 19:58
  • @Vlad As I wrote, specific elements may be patentable. You may freely license patented technologies. Many open source applications are built on patented technologies that are freely licensed. – Eric S Mar 27 at 21:02

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