Patent Liability Insurance

Matthew Flaschen matthew.flaschen at
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. 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
> host?

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.

Matt Flaschen

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