# BSD license and patents



## roddierod (Mar 10, 2010)

I was just reading this article about Sun, Apple and Microsoft threatening to sue each other over patents and the thought occurred to me. Can someone take code written by the FreeBSD project and licensed under the BSD license and modify it slightly  and patented it? And if so, how does that play out in court?

Just wondering.


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## fronclynne (Mar 11, 2010)

They most certainly could patent the modifications*, and then it would be up to the whim of some court somewhere as to whether it's valid, iff someone sues.


* & mind you, I have some serious problems with the way the USTPO "reviews" patents, I can't really speak about the EU, but it's pretty much a rubber stamp here.


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## SirDice (Mar 11, 2010)

roddierod said:
			
		

> Can someone take code written by the FreeBSD project and licensed under the BSD license and modify it slightly  and patented it? And if so, how does that play out in court?



Prior art


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## DutchDaemon (Mar 11, 2010)

I think it's highly unlikely one can patent anything when one must reproduce the original license in the process. Making it closed source is one thing, patenting it sounds impossible to me (because of, indeed, demonstrable prior art).


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## fronclynne (Mar 12, 2010)

You are perfectly at liberty to build on prior art & if your improvements are significant (or at least non-obvious) you may patent them (if they're patentable technology).  This has no effect on the prior art: it retains all of its former legal status and doesn't suddenly become patented in itself.  Unless you have really good lawyers.


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## DutchDaemon (Mar 12, 2010)

Well, that's at odds with OP's "modify it _slightly_ and patent it" question. It can be made proprietary/closed (under the BSD license), but actually _patented_ ..


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## roddierod (Mar 13, 2010)

I've been under the weather lately or would have responded earlier. But it seems to me that give then number of patents owned by companies such as Apple, Microsoft and Sun and given that they all have code from BSD that somewhere something the patented may have come from code original created by the BSD(s). Specifically I was thinking the TCP stack, but in the case of Apple, would they not have a patent on OS X itself in which case something as to be from the FreeBSD/NetBSD projects.

I did a quick look as some patents but given the amount and some of the insane things, IMO, such as icon clicking and such that is patented I really could not find anything that lead me to good example.


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## fronclynne (Mar 14, 2010)

You wouldn't patent OSX (or I think be able to (Method For Turning Hot-Dogs Into Computer Outputs via Human Interaction, anyone?)), that would fall under both copyright (for the code) and trademark (for the name).  What they would patent would be, for example, the specific display methods used by Cocoa or Carbon (especially as they differed from any prior art).

If they made some improvement to the BSD TCP/IP stack, they might try to patent the _method_ by which the improvement worked, which would be up to the USTPO (or equivalent elsewhere) to grant, and up to Apple's lawyers to enforce, and up to the courts to uphold, but even if the patent holds it would still only apply to the improvement, not at all to the original BSD TCP/IP implementation.


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