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I want to release my software under an open-source license. I got a patent on the part of it.

Is there an open-source license that will allow people to use my software but will not grant a patent license?

MadHatter
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Ilya Gazman
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  • Wikipedia has an overview with several licenses, which includes the topic of 'patent grant'. Have you had a look? https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses – Martin_in_AUT Jan 29 '23 at 16:05
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    As your software will be effectively unusable without a patent license, what do you want to achieve with making your code open source? – Bart van Ingen Schenau Jan 29 '23 at 17:01
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    @BartvanIngenSchenau I want to allow people to contribute to that open source – Ilya Gazman Jan 29 '23 at 17:04
  • @Martin_in_AUT will creative common zero satisfy my requirements? – Ilya Gazman Jan 29 '23 at 17:12
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    You asked this question once before, and got some pretty good answers then. In particular, I agree with what Philip said before: it doesn't sound like you want an open-source licence at all. Could you clarify how this question differs from the earlier question (except inasmuch as your patent has been granted), and perhaps also accept an answer to that earlier question? – MadHatter Jan 29 '23 at 17:16
  • @MadHatter it's a more general question, and the version is not necessary to me anymore. – Ilya Gazman Jan 29 '23 at 17:38
  • To be able to contribute, I would need to do things that are not allowed without a patent licence. – Bart van Ingen Schenau Jan 29 '23 at 17:42
  • @IlyaGazman Can you explain how this is more general than your other question? This question doesn't have an example, but I don't yet understand a case that would be covered by this question (i.e., an author doesn't freely license their patent but does license copyright on a system implementing that patent) that isn't also already covered by your old question. The existing answer looks perfectly applicable to me and I don't want to fragment answers to this question across two different posts. – apsillers Jan 29 '23 at 18:41
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    Related law SE post about open source and patents: https://law.stackexchange.com/questions/6178/what-happens-if-open-source-software-infringes-existing-patent – Brandin Jan 30 '23 at 09:14
  • Also I'm a bit confused by "allow people to use my software but will not grant a patent license." It seems a bit contradictory -- It seems if you allow people to use it under an open source license, then at least in some way you will be saying, at least implicitly, that people are allowed to use your patented technique as part of the software. Maybe you could add some restrictions to the license to accomplish what you want to do, but adding restrictions on use of the software would disqualify it as "Open Source". See https://opensource.org/osd – Brandin Jan 30 '23 at 09:21
  • @BartvanIngenSchenau, how about I will share the code under CC0 and the binaries under Apache 2.0? Will it allow contribution? – Ilya Gazman Jan 30 '23 at 22:13

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There is a list of open source licenses on Wikipedia for which it is indicated whether the license includes language about patents or not. In order to select the best one for you, you should consult a lawyer. IANAL.

Your patent is valid only in the jurisdictions in which the local patent office has allowed the patent application, and only as long as you continue to pay the fees, maximum 20 years (usually). In all other jurisdictions your patent offers no protection for your invention, actually the publication of the patent will put your invention into public domain in all countries where you have no patent. (This is a bit oversimplified, please ask your lawyer.)

The ecosystem for software patents is getting tougher and tougher, and in many jurisdictions the patent claims of software patents can not be enforced, a patent will not be granted.

It also depends how closely your patent is covering the functionality of your software. Would it be a big change that is needed to escape your patent? Nobody can tell you that until you have finished litigation.

The patent will not protect your software in a way that others cannot take it and learn from it or work on it. The patent will only protect you from the actual use of an implementation in the jurisdiction, in which the patent was granted. If you plan to put your code on GitHub people will be able to fork it, change it, use it, and the use will only stop if you are able and willing to stop them by expensive litigation.

If you want other developers to contribute to your code then it seems counterproductive if you are hiding in the bushes with your patent. This will likely not motivate others to contribute their valuable time to your project. But please go ahead and find out yourself.

Martin_in_AUT
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