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What happens if an open source software is released globally and it violates a patent? I found an interesting answer on MetaFilter and would like to know if it is considered to be correct by local community. The answer says in short that theoretically a patent infringement exists but in reality the open source project won't be sued for various reasons at least as long as no commercial entity uses the software to make profit from it.

Can a distribution and usage model be found that "works around" current patent legislature for example by making the developers anonymous or by using largely anonymous distribution channel (for example P2P sharing - like bittorrent). I know nothing can really be 100% anonymous and for example the music industry is able to take legal action against torrent trackers (have them shut down), but it probably goes back to how strong is the patent holder and if there is an asset to be gained from a possible judgment.

An example case for such patent violation may be writing software that works as a driver assist the same way as is already patented. By a work around I mean a form of distribution what the end user would play a large role since the end user crowd is probably the hardest to sue by the patent holder. The end user would download the software to the car by him/herself.

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Software doesn't infringe any patents. Creating a product that includes the software may infringe the patent, and may infringe that patent because the software is included, but the software itself doesn't. Software on its own doesn't have any effect that could be patented, only as part of some machine.

On the other hand, if you want to distribute software that is under the GPL v3.0 license, then a requirement is that you give everyone a patent license for all patents that would be infringed by using the software (as part of some machine), and if you are not the patent holder, then in practice that means you are not allowed to distribute the software.

With your grand plan that you write software and then let the end users do the patent infringement, that will backfire in two ways: First, you'd be likely sued for contributory patent infringment, because it is you who enables the patent infringemnt. Second, you can be sued for copyright infringement because you have no license that allows you distribution of the software, depending on the Open Source license used.

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  • Many programs could be used in at least one way that would infringe upon someone's patent, and in at least one way that would not. I don't think it would be reasonable for an open-source license to require that no possible use of a program would violate someone's patents. It would certainly be helpful for the author of a program to make note of any patents that would limit the ways in which the program could be used without license from the patent holder, but the fact that such limits exist should not preclude open-source distribution of the software for other purposes.
    – supercat
    Commented Apr 25, 2018 at 15:41
  • @supercat Software developers tend to make clever, logical arguments that go down like a lead ballon when you give that argument to a judge in court.
    – gnasher729
    Commented May 6, 2019 at 16:36
  • What aspect do you disagree with? Who are you suggesting would be liable to whom, and for what?
    – supercat
    Commented May 6, 2019 at 16:57

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