Understanding Patent Rights with BSD or MIT License

The question of whether a BSD or MIT license can prevent someone from patenting your idea is a complex one. This article delves into the intricacies of how these licenses affect the legal landscape of software patents, particularly the role of copyright notices and prior art.

License and Patent Rights

It is important to note that the license itself does not inherently prevent someone from obtaining a patent on your software idea. If your code is publicly available, your code can serve as prior art, which is crucial in patent law. If another party files a patent application on the same or similar software, and the patent examiner is aware of your code as prior art, the patent application may be rejected. However, this is not a guarantee.

Patent attorneys must conduct a thorough search for prior art before filing a patent application. If your code is not discovered during this search, the patent may be granted, and you may face the challenge of contesting the patent in a court, which can be costly and time-consuming.

Code Publicity and Patent Filing

There are scenarios where your copyright rights and someone else's patent rights can coexist. For example, if someone files a patent application on your code before it is publicly available and the patent examiner does not find your code, the person may still receive a patent. Even if your code is later released and can be used as prior art, the precedent set by the granted patent might still hold.

Another situation is where you publish your code after the other person has filed a patent application. If your code was not discovered by the patent examiner and the patent is granted, you may still have valid copyright rights while the patent is being enforced.

Proof of Invention Theft

It is also worth noting that proving that someone stole your invention from you is not easy. Even if you can demonstrate that the patent holder used your code or idea, it may be difficult to prove the intent to steal. This is why the first-to-file system can be advantageous for patent applicants, giving them a higher chance of patenting their invention over prior art.

Defensive Publications and Prior Art

To improve the chances of your code being recognized as prior art, one can file a defensive publication. This involves making your code available publicly before any potential patent application is filed. While this may not guarantee that the examiner will find your code, it increases the likelihood of your code being recognized as prior art.

Keep in mind that a defensive publication is not a legal guarantee and should not be seen as a replacement for proper legal advice. The legal landscape of software patents is complex, and consulting a patent attorney is always advisable.

Conclusion

In conclusion, while a BSD or MIT license does not prevent someone from obtaining a patent on your software idea, the availability of your code and its recognition as prior art can influence the outcome of a patent application. A publishing strategy that includes defensive publications can help improve the likelihood of your code being recognized, but the process remains complex and can be costly.

Acknowledgments

Author's note: This content is for informational purposes only and does not constitute legal advice. For detailed legal questions, consulting a professional patent attorney is recommended.