This software was released as open source 2 years ago:


The license allows commercial use:


However, end of last year one of the authors decided to file a patent. As a result, in October 2021 they put a warning saying that the code cannot be used for commercial purposes:


What has precedence, the code license or the patent?

  • Note that the license includes a license to patents starting at line 73 or so. Jan 19, 2022 at 20:21
  • Can you list the date of the first post of source code and the earliest priority date of the patent application ? In the US there is a 1 year sort-of grace period. Jan 19, 2022 at 23:41
  • The date of source code publication on GitHub is 12/20/2020. Leads me to wonder if a provisional application was submitted to USPTO. github.com/lululxvi/deeponet
    – gatorback
    Oct 16, 2022 at 23:16
  • 1
    Because of the way Git works, I believe it's possible to 'publish' something onto GitHub with a date in the past. For example, suppose I have some code on my hard disk that I "committed" locally 2 years ago, in 2020 (but didn't publish it yet). If I push it today to GitHub, then I'm fairly certain it will show up as "October 2020" in GitHub. So it will look like I published it 2 years ago on the GitHub interface, but in reality it was only published this year. To verify when it was actually published/pushed you probably you need to use a Git client (GitHub does not show the necessary info).
    – Brandin
    Oct 17, 2022 at 6:41

2 Answers 2


At the bottom of the webpage: https://github.com/lululxvi/deeponet

This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Creative Commons clarifies: https://creativecommons.org/licenses/by-nc-sa/4.0/

NonCommercial — You may not use the material for commercial purposes.

As to whether the code is eligible for patent, that is a different question, which I would think @GeorgeWhite has the experience to disposition. In my experience, I did not disclose my application until I filed a non-provisional application, though I suspect that you can disclose (publish) after a provisional application is filed with the USPTO. IANAL

  • Looks like the software got relicensed recently after OP posted this question, before that it was under Apache 2.0. So any sufficiently old version should be unaffected by the NonCommercial restriction.
    – TooTea
    Oct 18, 2022 at 15:41

The software can’t be patented

Since it was published before the patent application was lodged, the patent application should be rejected since it is based on prior art. You (or anyone else) can lodge an objection to the patent application on that basis to help the patent examiner find the prior art.

  • 2
    Did the question provide the detail of the priority date of the application and the earliest GitHub posting or the current status of the relevant application? Jan 19, 2022 at 21:02
  • Software can, in general, be patented, it just can' be patented after it was published.
    – ohwilleke
    Jan 19, 2022 at 22:32
  • 1
    I don’t see the relevant dates in the question. If Brown University (see the GitHub) thinks it has patent rights maybe it does. Jan 19, 2022 at 23:43
  • 1
    @GeorgeWhite the question: posted 2 years ago, decided to patent October last year.
    – Dale M
    Jan 20, 2022 at 0:11
  • 4
    Without an earliest priority date that goes not make the situation clear. In the US there is a one year grace period and it might take 3 years from application to grant. Code can be published, a year later a patent filed for and 3 years later a patent granted and a warning put up on GitHub. The loose language and presumptions of when someone “decided” to patent are not remotely definitive. The notice might have been posted before applying after applying or after publishing or after grant. Jan 20, 2022 at 18:16

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