Would it be possible, from a legal point of view, to create a software license that would prevent someone from patenting any part of software (source code) released under that license?

I know there are some licenses, like Apache 2.0 and MPL, that void the license for licensees if they try to pursue any patent infringements against the licensor. But it is a bit different, because it still doesn't prevent someone from trying to raise a patent for the software released under that license. But the lack of licenses that would prevent that makes me think that there must be something that makes creating such a license difficult, if not impossible, because I don't believe it's only me who has got such idea in mind.

Edit: I know the software itself can't be patented, only the way the algorithm in that software resolves a specific problem. I use 'software' as a generic term because there is no way of knowing what kind of patent someone can see and can attempt to register based on that software. Say the software may be resolving a specific problem in a new way and the author may not even know about that, yet someone else, maybe knowing the domain better, may see the novelty and try to steal the idea and patent it. Is it possible to prevent that from happening only by wording the license in a specific way?

2 Answers 2


You can't file a patent if you aren't the inventor. So you don't have to worry about somebody else who didn't write the software, who sees the software and then tries to file a patent for some algorithm in the software. That would be patent fraud.


"Software" itself cannot be patented. The method, machine, or way it does things - can be patented. If the method is "know" via the open source licenses you mention, it may qualify as prior art and thus prevent anyone from patenting a thing that uses those components; or it may violate the terms of use of the open source software which may prohibit such patenting.

  • Yes, I know that once a patent for a specific idea in that software is filled in, someone may try to do many things to point out the lack of novelty in hope that the patent won't be granted. But that's not my question. My question was specifically why the license isn't worded in a way that would prevent that (e.g. because that's not needed, not possible, etc.).
    – Greg
    Commented Jun 14, 2013 at 14:32

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