Thursday, November 19, 2015

Open Source Software: Hamstringing Patent Rights

In the rush to develop their software many Entrepreneurs often choose to incorporate open source software into their mobile applications, websites, other proprietary software, the underlying algorithms, etc.  Yet, these modules of open source software can carry a very real threat in the form of the so-called “copyleft,” or open source, agreements associated with them. 

Copyleft agreements come in a large variety, some of which are rather harmless.  For instance, some of these agreements merely allow a party to re-use the associated software with few restrictions.  But some copyleft agreements dictate that the (re) user of the associated software allow others to use the programs into which they incorporate the open source software without restrictions and/or for free. 

Typically, these agreements also stipulate that by merely re-using the open source software, the re-user agrees to the terms of its copyleft agreement.  This means that by re-using such software, effectively, the re-user has granted a royalty free license for others to use their otherwise proprietary software.  This situation can effectively hamstring any patent rights the re-user/entrepreneur has in that software.  

Clearly, before using open source software, Entrepreneurs should have the associated copyleft agreement(s) reviewed by an Attorney.  In the alternative, Entrepreneurs should weigh carefully the associated risks or develop their software independently. 

We at the Villhard Patent Group would enjoy discussing your potentially patentable ideas with us.  For more information about us, please see or call us at 512-897-0399.  We look forward to hearing from you.


  1. What lessons can we learn from successful entrepreneurs?
    small companies

  2. Good question. In this context, I favor developing your software with your own team. That way you don't have to worry about this issue. That being said, if economics force you to use open source code, make sure that you understand what the pertinent license agreements call for. And if you are uncertain, then have an Attorney review the license.