Open Source Patent Protection: Can You Patent Something That You’re Open Sourcing?

Understanding open source patent law is crucial for companies developing AI technology today. Artificial intelligence is advancing rapidly, fueled by open-source contributions from companies, universities, and independent developers. While this open innovation accelerates technological progress, it also raises an important legal question: Can AI technology that has been publicly disclosed and open sourced still be patented?

The answer is yes—but only under specific conditions. Open-source AI complicates the patent process but does not inherently prevent patentability. Companies looking to protect their AI innovations must understand how open-source disclosures impact prior art, navigate patent law requirements, and structure their applications strategically to secure enforceable protection.

Definition and History of Open Source Software

Open source software (OSS) is a type of software that is released under a license allowing users to view, modify, and distribute the software’s source code. This concept has roots stretching back to the 1960s and 1970s when software was often shared and modified by programmers in academic and research settings. However, it wasn’t until the 1980s that the term “open source” began to take shape, and the movement started to gain significant momentum. Open source programs play a significant role in both enterprise and personal computing, highlighting their foundational importance in various computing environments such as the internet, business, and cloud computing.

A pivotal moment in the history of open source software was the founding of the Free Software Foundation (FSF) by Richard Stallman in 1985. The FSF aimed to promote the idea of free and open source software, with a mission to create a free operating system called GNU, which would be compatible with Unix. To ensure that the software remained free and open, the GNU General Public License (GPL) was created in 1989, setting a precedent for future open source licenses. Different open source licenses govern the use and modification of software, including considerations for derivative works and patent rights in open source projects.

The 1990s saw the open source movement gain widespread popularity. In 1998, the term “open source” was officially adopted, and the Open Source Initiative (OSI) was established to promote and define open source software. Today, open source software is ubiquitous, playing a crucial role in various industries, including technology, healthcare, and finance. The open source movement has fostered a culture of collaboration and innovation, driving significant advancements in software development.

Can Open Source Software Be Patented?

The question of whether open source software can be patented is complex and requires careful consideration. Open source software licenses, such as the GNU General Public License (GPL), do allow for patenting, but they also require that any patents granted be licensed under the same terms as the original software. This means that while patenting can provide additional protection, it can also limit the freedom to use and modify the software.

Patenting open source software can serve as a defensive measure to prevent others from patenting similar inventions and to ensure that the software remains free and open. However, this approach can sometimes conflict with the principles of open source software development, such as software freedom and collaboration. Developers must carefully weigh the benefits and drawbacks of patenting their software and consider alternative approaches.

One such alternative is defensive patenting, where software is patented to prevent others from patenting similar inventions. Another approach is forming patent pools, where multiple parties share patents to reduce the risk of patent litigation. These strategies can help protect open source software while maintaining the collaborative and open nature of the development process.

Ultimately, open source software developers must navigate the complexities of patenting and open source licenses to find the best approach for protecting their innovations while supporting the principles of open source development.

As open source principles continue to shape the software world, they have found a natural extension in the development of artificial intelligence. Much of the current progress in AI—particularly large language models and neural network frameworks—is built on open-source codebases, datasets, and collaboration across institutions. This trend of openness, however, introduces fresh challenges when it comes to protecting proprietary value.

Many companies developing cutting-edge AI are participating in open-source initiatives while simultaneously seeking patent protection for their unique contributions. The key is understanding what, within an AI system, remains eligible for patenting—even when parts of it are publicly shared.

What AI Innovations Can Still Be Patented?

Even if an AI model itself is open-source, several aspects of AI innovation remain patentable:

• Novel Training Methods: Unique data preprocessing, training techniques, or reinforcement learning strategies.
• Specific Applications: AI-driven solutions in fields like medical diagnostics, fraud detection, or autonomous control systems.
• Hybrid Integrations: Combining open-source AI with proprietary hardware, software, or additional processing techniques.
• Efficiency Improvements: Modifications that enhance performance, reduce computational costs, or improve accuracy.

Redistributors of free programs may need to individually obtain patent licenses, which could compromise the program’s proprietary nature. Ensuring patents are licensed for free use by everyone is crucial to prevent such issues and maintain a balanced patent strategy.

Patent protection can extend beyond an open-source model to the way it is implemented, applied, or improved upon in a proprietary system.

For companies unsure of what aspects of their AI technology may be patentable, a consultation with a patent attorney can provide guidance. Many AI innovations are patentable not because of the model itself but due to novel ways it is trained, applied, or integrated. Businesses should carefully consider which elements of their AI technology provide a competitive edge and seek patent protection accordingly.

The Role of Prior Art and Source Code in AI Patents

A patent grants an inventor the exclusive right to make, use, sell, or distribute an invention for up to 20 years from the filing date. However, to be patentable, an invention must be novel, non-obvious, and useful. Open-source AI and open source code directly affect the novelty and non-obviousness criteria because these depend on prior art.

Prior art includes any publicly available information describing a technology before a patent application is filed, such as:

• Published patents and applications
• Research papers, technical publications, and product manuals
• Open-source software repositories (e.g., GitHub, Hugging Face, TensorFlow)
• Blog posts, whitepapers, and conference proceedings

Open source software projects are created by both individual programmers and collaborative teams, emphasizing the infrastructure that supports them, such as code hosting services.

If an AI invention has already been disclosed in prior art, it cannot be patented. Even minor modifications may be deemed obvious extensions of existing technology, leading to rejections under 35 U.S.C. §102 (novelty) or §103 (obviousness). Given the rapid dissemination of AI technologies, prior art rejections are a significant hurdle for AI patent applications.

For companies new to the patenting process, it is important to understand that even internal developments can sometimes be considered prior art. If a company publicly shares its AI innovations—whether through a conference presentation, an open-source repository, or a whitepaper—without first filing a patent application, that disclosure could prevent patentability later. This makes timing critical when considering patent protection for AI inventions.

Conducting a Prior Art Search and Understanding Open Source Licenses Before Filing

With the vast volume of open-source AI development, conducting a comprehensive prior art search is essential before filing a patent application. A well-executed search helps determine:

• Whether an AI technology has already been disclosed in an open-source repository, research paper, or patent filing
• What aspects of the invention remain novel
• How to structure claims to differentiate the invention from prior art

Understanding open source software licenses is crucial during a prior art search, as these licenses dictate how software can be used, modified, and distributed, impacting the novelty and patentability of AI technologies.

Identifying prior art early allows for strategic claim drafting that emphasizes unique technical contributions. A weak prior art search can lead to rejected applications or patents later invalidated due to undisclosed prior art. If an AI model is already open-source, companies can focus patent protection on proprietary improvements, such as unique training methods, computational optimizations, or real-world applications.

For companies unfamiliar with the prior art search process, working with a patent attorney or conducting a professional patentability search can help avoid costly mistakes. A comprehensive prior art search does not just examine granted patents but also unpublished applications, research publications, and industry disclosures. This ensures that the application is structured to maximize the likelihood of success.

Copyright vs. Patent Protection for AI and Open Source Software

When protecting AI software, it is essential to distinguish between copyright and patent protection.

• Copyright protects the literal expression of code but does not cover the underlying functionality, concepts, or methods.
• Patents protect the novel processes, algorithms, or systems that an AI invention performs, regardless of how they are implemented.

This distinction is particularly relevant for open-source AI. Because open-source software makes its source code freely available, copyright protection offers little deterrent against competitors who can rewrite the code to achieve the same result. Patents, however, offer broader protection by covering the underlying functionality, meaning that even if someone reimplements an AI innovation in a different programming language, they could still infringe on a patent if they use the patented method or process.

For businesses, this means that relying solely on copyright protection for AI software is insufficient. While copyright prevents direct copying of code, competitors can often work around it by making minor modifications. Patents, on the other hand, provide a stronger barrier to competition by securing the core innovation itself. Additionally, proprietary software, which restricts users from modifying or accessing the source code, relies heavily on copyright and proprietary licenses to monetize intellectual property. Companies should assess whether their AI innovations qualify for patent protection early in the development process to prevent competitors from capitalizing on their advancements.

Open Source Licenses and Their Types

Open source licenses are legal agreements that govern the use, modification, and distribution of open source software. These licenses are essential for maintaining the principles of open source software development, ensuring that the software remains accessible and modifiable by anyone. There are several types of open source licenses, each with its own set of terms and conditions.

1. Permissive Licenses: These licenses, such as the MIT License and the Apache License, allow users to modify and distribute the software with minimal restrictions. They are designed to maximize freedom and flexibility, enabling developers to use the software in both open source and proprietary projects.
2. Copyleft Licenses: Copyleft licenses, like the GNU General Public License (GPL) and the Mozilla Public License (MPL), require that any modified versions of the software be distributed under the same license. This ensures that the software and its derivatives remain free and open, promoting software freedom and preventing proprietary appropriation.
3. Weak Copyleft Licenses: These licenses, including the Lesser General Public License (LGPL) and the Eclipse Public License (EPL), require that significant modifications to the software be distributed under the same license. However, they allow for more flexibility in combining the software with proprietary code, making them suitable for certain types of projects.

Open source licenses can be broadly categorized into two main types: free software licenses and open source licenses. Free software licenses, such as the GPL, prioritize software freedom, ensuring that the software remains free and open. Open source licenses, like the Apache License, emphasize openness and collaboration, allowing for a broader range of uses and contributions.

Trade Secrets vs. Patents in AI and Proprietary Software Development

Some companies consider trade secrets as an alternative to patents for protecting AI innovations. A trade secret is confidential information that provides a business advantage and is protected as long as it remains secret. However, in AI development, trade secrets pose significant risks:

• Risk of Reverse Engineering: AI models, especially those deployed commercially, can often be analyzed and reconstructed by competitors, leading to a loss of exclusivity.
• Limited Enforcement Power: Unlike patents, trade secrets do not grant exclusive rights. If a competitor independently develops a similar AI technology, you have no legal recourse.
• Market Displacement by Larger Companies: In AI, big tech companies have vast resources to develop and patent technologies that can block smaller companies from entering or staying in the market.

Open source licensing also plays a crucial role in this context, as it involves legal interpretations and implications concerning contracts, rights, and patents. Courts evaluate the rights conveyed through open source licenses, and the behaviors of companies releasing code under these licenses may imply additional rights or permissions related to patent use.

By contrast, a patent provides legal protection that allows the owner to license, monetize, or control how the technology is used. Instead of hoping no one else develops a similar AI innovation, a patent ensures enforceable rights, creating opportunities for partnerships, licensing agreements, or competitive advantages in the marketplace.

Open Source Business Models

Open source software can be leveraged in various business models, providing companies with innovative ways to generate revenue and foster community engagement. Here are some common open source business models:

1. Support and Services: Companies can offer support and services for open source software, including consulting, training, and maintenance. This model allows businesses to monetize their expertise and provide value-added services to users.
2. Dual Licensing: In this model, companies offer the software under a permissive open source license and also provide a proprietary version with additional features or support. This approach allows companies to cater to both open source enthusiasts and commercial clients.
3. Open Core: Companies release a core version of the software as open source and offer additional features, plugins, or modules as proprietary add-ons. This model balances the benefits of open source development with the potential for revenue generation from premium features.
4. SaaS (Software as a Service): Companies provide open source software as a service, allowing users to access and use the software over the internet without the need for installation or maintenance. This model offers convenience and scalability, making it attractive to a wide range of users.

Open source business models offer several benefits, including cost savings, increased collaboration, improved software quality, and flexibility. By reducing development and maintenance costs, fostering community involvement, and enabling customization, open source software can provide significant advantages.

However, these models also present challenges, such as revenue generation, increased competition, and the need for substantial support and maintenance efforts. Companies must carefully evaluate the pros and cons of each model and choose the approach that best aligns with their goals and resources.

Overall, open source software and business models offer numerous opportunities for innovation and growth. By leveraging the principles of open source development, companies can create valuable software solutions while fostering a collaborative and inclusive community.

Open Source AI and Machine Learning Applications

Open source AI and machine learning applications are gaining traction as they offer a cost-effective and collaborative approach to developing advanced solutions. These applications can be used for a wide range of tasks, from natural language processing to computer vision, making them versatile tools in various industries.

Frameworks like TensorFlow and PyTorch provide a solid foundation for developing and deploying AI and machine learning models. These open source frameworks enable developers to build sophisticated models and share their work with the community, fostering collaboration and innovation. Industries such as healthcare, finance, and transportation are increasingly adopting open source AI and machine learning applications to enhance their operations and services.

However, the use of open source AI and machine learning applications also raises concerns about data privacy, security, and bias. Developers and users must address these issues by implementing secure data storage practices and ensuring that their models are fair and unbiased. By taking these steps, the open source community can continue to advance AI and machine learning technologies while maintaining ethical standards.

In summary, open source AI and machine learning applications offer significant benefits, including cost savings, collaboration, and innovation. By addressing potential concerns, developers and users can harness the full potential of these technologies to drive advancements across various fields.

What Happens If You Don’t Get a Patent?

Failing to secure a patent for an AI innovation can have significant consequences, including:

• Loss of Exclusive Rights: Without a patent, competitors can freely use, modify, or commercialize your innovation without compensation.
• Difficulty in Securing Investment: Investors and stakeholders often look for strong intellectual property protection as a sign of competitive advantage and market differentiation.
• Inability to Monetize the Innovation: A patent allows for licensing and partnerships that generate revenue; without it, monetization opportunities may be limited.
• Risk of Being Blocked by Competitors: If a competitor patents a similar or improved version of your AI innovation, they could restrict your ability to operate in the market.
• Limited Legal Recourse: Without patent protection, enforcing intellectual property rights becomes difficult, leaving companies vulnerable to infringement without any legal leverage.

For AI companies, the decision to patent can define their ability to compete, attract funding, and protect their technological advancements. If an AI innovation provides a competitive advantage, failing to patent it could allow others to benefit from your work without restriction. Additionally, free open source software can offer protective benefits against market competitors by leveraging collaborative development and patent rights to safeguard innovations.

Take The First Step Toward Protecting Your Startup’s Intellectual Property

Don’t let common patent filing mistakes jeopardize your startup’s future. Take proactive measures today to safeguard your innovations with the help of The Rapacke Law Group. With The RLG Guarantee, you can start with a thorough prior art search, ensuring your software’s patentability. If the search reveals that your invention isn’t patentable, you’ll receive a full refund, minimizing your financial risk. To get started on your journey to robust intellectual property protection, book a free IP strategy call with our expert team. Schedule your Free IP Strategy Call and secure your startup’s competitive advantage in the market.