Recently, Open Source China received help from open source project authors.
Wang started to develop Blockly-based Raspberry Pi visual programming software BlocklyPi in March 2018 (junior high school), and released the Alpha beta version in the summer of 2018, using GPL-2.0 as open source, and the code is hosted on the Gitee repository. Wang recently discovered a patent application for "an online graphical programming system based on blockly and raspberry pi and its use method". According to public information, the patent was published on October 22, 2019.
Due to the similarity between the name of the patent and the implementation path of BlocklyPi, in the previous email, Wang wanted to find out whether Goodwell's patent violated the GPL 2.0 open source agreement, and how to protect the rights if it violated? In the further communication between Open Source China and him, Mr. Wang made it clear that he was more worried about whether his software would infringe the patents of Good Micro and be held accountable. Can the software continue to be written? At the same time, after careful comparison of the patent description and the description of my own software, it is determined that there is no overlap between the two.
For this reason, Open Source China consulted lawyer Deng Chao for the first time. It is clear that the specific description of the patent does not match the description of Wang's software, and it is impossible to judge whether it is "who copied whom"; The software was released earlier, so even if the patent and software design ideas overlapped, Wang could not be sued for patent infringement.
Kids can concentrate on coding!
However, several open source software and patent issues involved in this matter deserve the attention of the majority of open source authors.
Question 1: What is the relationship between license and patent right?
A license is a copyright agreement. This has also been clearly recognized by law in my country: from the judgments of the two recent GPL v2 disputes in my country, the court clearly defined that the GPL 3.0 agreement has a contractual nature and can be recognized as a copyright signed between the licensor and the user. protocol. That is, open source licenses are copyrights, which are agreements on copyright.
Copyright and patent rights belong to different levels of intellectual property rights. At the software level, copyright protects the specific code of the software, including the architecture, algorithm, specific language for implementing the algorithm, and specific code organization. The patent right protects the design ideas and creativity of the software, and is a technical solution based on the code.
Therefore, plagiarism of software code code is copyright infringement, but plagiarizing the design ideas of software to apply for a patent itself is not infringing.
In addition, the copyright is automatically generated, and when the author writes the software code, the code automatically has the copyright. The patent right needs to be applied to the state, and the application can only be owned.
Selecting open source software with a license only means that a specific form of code is open sourced under certain conditions, but the technical solutions above the code are not shared. That is to say, in most cases, setting an open source license does not control the head of the patent, unless the license mentions patent terms, such as the Apache license mentions patent licensing, requiring the publisher to authorize the patent license:
3.Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement,then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.
3. Patent License. Subject to the terms and conditions of this license, each contributor hereby grants you a perpetual, worldwide, non-exclusive, free, royalty-free, irrevocable (except for the exceptions listed in this section) Patent licenses for making, commissioning, using, offering for sale, selling, importing, or otherwise transferring this work, such patent licenses are limited to the patent claims licensed by the contributor with the license rights, and the contributor's Contributions, or their combination with this work, inevitably result in infringement of the patent claims. If you bring a patent lawsuit against any entity (including cross-actions and counterclaims) alleging that this work or contribution directly or indirectly infringes, any patent license granted to you by this license terminates on the date the lawsuit is brought. (Translation source: Wei Sir said)
Question 2: How to protect your rights when your own open source software ideas are patented by others?
In general, contributors to open source software, including the original copyright owner and re-developers of open source software, have the right to file patent applications for their contributions. But we rarely see open source software authors apply for a patent immediately after releasing the software, and because the software source code is publicly visible, there is a possibility that a third party who is not an author/contributor can apply for a patent with a design idea.
If you find that your open source software idea has been patented by others, you can ask the applicant to withdraw the patent application through negotiation, or apply for "patent invalidation" to revoke the patent that has been passed. However, the premise is that there needs to be a place to prove that the patent is plagiarized from open source software in design, and the evidence and reasons are submitted to the examiner.
Question 3: Should you worry that your open source software will infringe patents?
In Wang's case, since its open source software was released earlier than Good Micro's patent application time, there is no need to worry about patent infringement.
However, if the technical solution contained in the source code has been patented in advance by others, or if the original idea overlaps with the previous patent, infringement may occur. In this regard, there is no difference between open source software and commercial software.
In the face of patent disputes, open source software has also explored a new way to face possible risks. OIN is a patent "Great Wall" built around Linux. It was established in 2015 and hopes to protect Linux and its related open source projects by establishing a shared defensive patent pool. Anyone engaged in Linux, GNU, Android or any other Linux-related software development All companies, projects or developers can join OIN and obtain thousands of patents or copyrights for free through cross-licensing. At the same time, OIN, which brings together many patents, can also act as a good deterrent to protect the enterprises in its alliance from falling into related patent disputes.
Before OIN was established, large companies were also more cautious in their choice of patent litigation. In 2013, Brad Smith, Microsoft's chief legal counsel, told Fortune: "The Linux kernel infringes 42 Microsoft patents, the graphics interface for Linux infringes another 65 Microsoft patents, and Open Office.Org infringes more than 45 Microsoft technology patents. , the open source email program infringes 15 Microsoft patents, and other open source programs infringe 68 Microsoft patents (a total of 235 Microsoft patents are infringed by open source software).” At the same time, Brad Smith also said that Microsoft would file a lawsuit.
But then, Horacio Gutierez, Microsoft's vice president of intellectual property, denied this behavior, saying "Microsoft will not litigate. If we wanted to do that, we would have done it a few years ago." Some people believe that the reason why Microsoft The reason for not filing a lawsuit is due to the pressure from the IT industry and the time-consuming and labor-intensive patent litigation.
As for individuals, Deng Chao said that patents often become a way of gaming between large companies, and individual developers hardly need to worry about being sued, and there is no need to invest money and energy in researching patents.
Interviewed guest: Lawyer Deng Chao, who focuses on intellectual property issues in the field of TMT
Contact: 18611123013