Using open source patented code

Question

Let’s say the Company A released the project under open source license. The Company B includes the work of the Company A into their solution and sells the solution to the Company C. If sometime in the future the Company D announces that the Company A’s implementation infringes their patent. What companies will be involved in the resolution of the infringement case? Thanks

P.S. Not looking for legal advice, just looking how open source community addresses this problem

Answer 1

Involved is a pretty wide net. I'd guess that everyone would get sued and the courts would sort it out.

Answer 2

What, you mean like this?

http://www.cloanto.com/users/mcb/19950127giflzw.html

:)

GIF code wasn't 'open source' since the concept wasn't really around then - but I think this gets more to what you are worried about.

Answer 3

Hi, a question as open as yours is answered with:

1. it depends
2. everyone
3. read this
4. google for sco patent war
5. IMO (which doesn't count for much) this would always be something that gets sorted on a case by case, the people involved are the ones who would be indicted or willfully want to participate (as in the case with SCO) to help out and be fair

Answer 4

Since you're not asking for legal advice I don't need that silly disclaimer I always have to use.

Anyways, it depends what was done first - the patent or the open source release. Let's say it's the patent. If that's the case, A, B and C will be liable for infringement because corporation D has...

"the right to exclude others from making, using or selling the invention throughout the United States".

Now, let's say that the open source software was released first. Then A, B and C would claim that they had priority (e.g. that the invention was in the public domain before the patent was issued) and the infringement claim (as well as the patent) would be thrown out.

This is a HUGE oversimplification of the whole deal, but it's a start.

I also addressed the issue here - it's worth taking a look.