[consulting] Patenting Drupal solutions

[Larry Garfield]

Jokes aside, the question of whether one can patent something under an open source license is still undecided by the courts.  GPLv3, the Apache 2 license, and others include explicit language forbidding the enforcement of patents you hold on people using code you've released under those licenses because the threat of software patents has been made before, and software patents are, to be blunt, public enemy #1 for software development in general and open source development in particular.  There's considerable debate as to whether software/business method patents can or should be issued in the first place, and open source developers are nearly universal in their opposition to them.

Assuming you're in the US, the question becomes even harder.  Given what our patent office has approved in recent years, I've no doubt that you could get them to give you a patent on something you do with Drupal if you have the right patent attorney word it vaguely enough, even if you didn't write it.  That doesn't make it an appropriate use of the patent system, and given that Drupal is under the GPL and 99% of the code on whatever site you're building was written by someone else I would argue (speaking for myself here) that even trying to do so is unethical.

It would probably also get you shunned by any open source project that heard of it, because "tainting" open source code with corporate patents is a very real and legitimate fear.  People wouldn't be able to trust that you/your client aren't trying to work a patented method into Drupal, release it, then cry "ah ha, now I can force everyone who uses Drupal 7 to pay me $699 per install!"

Also relevant is that Drupal is under GPLv2+, meaning that anything in Drupal core or in Drupal CVS could be released under GPLv3, which does have a patent protection clause.  What happens if you release something under GPLv2 that has a patent restriction on it and that code is then legally incorporated into a GPLv3 codebase, I have no idea.  The best approach is to avoid the patent and not find out.

>From a strictly legal standpoint, only an actual lawyer can answer that question.  From a business ethics standpoint, tell your client "no, what we're doing is open source, it's all shared."  If you have a lawyer who recommends otherwise, you need to get yourself a new lawyer because that one 1) doesn't understand open source and 2) is behaving unethically.  If your client insists on trying to find something to patent anyway, you get yourself a new client for the same reason.

--Larry Garfield

On Fri, 12 Dec 2008 11:42:34 -0700, "Brett Evanson" <brettev at gmail.com> wrote:
> I'm working with a client that has asked me this question: "Is
> anything we are doing patentable?".
> 
> What sort of things are patentable within open source development?
> What sort of issues are there with specific licenses? Where do I even
> go to start here?
> 
> Any help is much appreciated.
> 
> --
> Brett Evanson
> brettev at gmail.com
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