Patent Liability Insurance
matthew.flaschen at gatech.edu
Mon May 14 21:50:53 UTC 2007
Bruce Alspaugh wrote:
> One of the risks we see in creating an open-source project is the
> possibility of being sued for inadvertently reinventing someone else's
> patented idea.
This risk is not specific to open source.
Basic due diligence may be enough to avoid a copyright
> infringement, but we aren't sure if that is the case for patents.
IANAL, but no because independent innovation is not a defense for patent
infringement (as it is for copyright infringement).
> Are there inexpensive ways
> open-source projects can mitigate the risk of inadvertently infringing a
> third-party patent?
So far, the community has mostly relied on invalidating patents (e.g.
http://www.pubpat.org/) and accumulating portfolios to threaten
proprietary software companies with (e.g.
> How do most open-source projects raise the revenue to pay for this insurance? Do
> any of the many foundations that assist open-source projects (Apache,
> Mozilla, Eclipse, FSF, etc.) offer this insurance for the projects they
I know of no open source project that pays for such insurance.
> Most open-source licenses I have seen disclaim any warranty of patent
> non-infringement and therefore shift the legal risk onto the users.
It's not really shifting. The distributor is simply saying both user
and distributor would be liable for any infringement.
> Are the users of open source software therefore expected to purchase patent
> liability insurance?
No. The risk is actually exaggerated, in my opinion. Despite the FUD,
suing open source customers would be a PR nightmare.
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