Open source software code is publicly available and enables users to modify and disseminate new code including their modifications. Those who incorporate modifications into commercial software should consider both the patentability and infringement aspects of their efforts.
Much open source software is subject to the General Public License (“GPL”). Under the GPL, a programmer is required to grant IP licenses to downstream users of the code. Yet, it is also recognized that modifications to open source code may be commercially and possibly patentably protected.
Law firms, doctors’ offices, accounting firms and other services-related entities that use open source software but do not “sell” their modified code as a commodity are not likely to be subject to the GPL’s required licensing provisions.
However, modified open source software may be considered copyrightable and/or patentable subject matter that can be sold to the public. To the extent the modified software is considered “proprietary” and sold publicly, the end user may have to share revenue from sales of the software with the underlying software writer(s). Similarly, the modified software may be both patentable and subject to infringement of others’ patent and/or copyright rights. Therefore, careful consideration should be taken before one seeks to commercialize software based upon open source software