Open source software has reshaped the technology industry, but its legal foundations remain vulnerable to a threat its creators did not fully anticipate: patent assertion. Sara Boettiger and Dan Burk examined how both large technology companies (“titans”) and non-practicing entities (“trolls”) were increasingly wielding patent claims against open source projects, and what defensive strategies the community had developed in response.
The Patent-Copyright Asymmetry
Open source licenses — the GPL, Apache License, MIT License, and others — are built on copyright law. They grant users the right to copy, modify, and distribute source code under specified conditions. But software patents operate independently of copyright. A patent holder can assert infringement against any implementation of the patented method, regardless of whether the code was written independently or released under an open source license.
This asymmetry created a structural vulnerability. An open source project could comply perfectly with its license terms and still face patent infringement claims from entities that had never contributed a line of code to the project. Boettiger and Burk argued that this gap between the copyright-based open source model and the patent system posed an existential threat to collaborative software development.
The SCO Litigation and Its Aftermath
The article examined the SCO Group’s 2003 lawsuit against IBM, which alleged that IBM had improperly contributed proprietary Unix code to the Linux kernel. Although SCO’s claims were ultimately rejected after more than a decade of litigation, the case demonstrated how intellectual property assertions — even those lacking merit — could create prolonged uncertainty for open source adopters. Enterprise customers hesitated to deploy Linux during the litigation, and the case prompted the open source community to develop more systematic approaches to patent risk management.
Defensive Patent Strategies
The open source community responded to patent threats with several institutional innovations. The Open Invention Network (OIN), established in 2005 by IBM, NEC, Novell, Philips, Red Hat, and Sony, created a defensive patent pool whose members agreed not to assert their patents against Linux and related projects. The Linux Foundation later launched the Open Compliance Program to help companies manage their open source IP obligations.
Individual companies also adopted defensive stances. Google’s Open Patent Non-Assertion Pledge and Red Hat’s Patent Promise represented unilateral commitments not to enforce certain patents against open source software. These pledges, while legally less robust than formal cross-license agreements, served as signals of corporate commitment to the open source ecosystem.
Corporate Patent Arsenals and Open Source
The “titans” in the article’s title referred to large technology companies whose relationship with open source was increasingly complex. Companies like Microsoft, which had historically characterized open source as a threat to its business model, began accumulating patent portfolios that could be asserted against Linux and Android. At the same time, other major firms were building their business strategies around open source while maintaining large patent portfolios as defensive assets.
Boettiger and Burk observed that this dual posture — contributing to open source while holding patents that could be asserted against it — created a delicate balance of power. The broader regulatory framework for knowledge control had not adapted to a world where collaborative development and proprietary patent rights coexisted within the same organizations.
Standard-Essential Patents and Open Standards
A related front in the patent-open source conflict involved standard-essential patents (SEPs). When patented technology is incorporated into an industry standard, the patent holder typically commits to licensing on fair, reasonable, and non-discriminatory (FRAND) terms. But the meaning of FRAND in the context of open source software — where the license requires free redistribution — remains contested. The article examined several disputes where SEP holders argued that FRAND obligations did not require royalty-free licensing, putting open source implementations of industry standards at risk.
Developments Since Publication
The landscape Boettiger and Burk described has continued to evolve. The America Invents Act of 2011 introduced inter partes review, giving defendants a new tool to challenge weak patents outside of district court litigation. The Supreme Court’s decision in Alice Corp. v. CLS Bank (2014) raised the bar for software patent eligibility. And the OIN has grown to over 3,800 members, establishing one of the largest patent non-aggression networks in history. Yet patent assertion against open source continues, and the fundamental asymmetry between copyright-based licensing and patent law remains unresolved.
Frequently Asked Questions
Can open source software be subject to patent claims?
Yes. Open source licenses govern copyright, not patents. A software patent holder can assert their patent against any implementation, regardless of whether the code is open source or proprietary. This asymmetry has been a persistent vulnerability for open source projects.
What is the Open Invention Network?
The Open Invention Network (OIN) is a defensive patent pool established in 2005 by IBM, NEC, Novell, Philips, Red Hat, and Sony. Members agree not to assert their patents against Linux and related open source software. As of 2024, OIN has over 3,800 community members.
How did SCO v. IBM affect the open source community?
SCO v. IBM (2003–2016) created years of uncertainty for Linux adopters and demonstrated how IP claims could threaten open source ecosystems even when the underlying claims lacked merit. The case prompted the community to develop more systematic patent defense strategies.
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