I am writing a library that may violate software patents. I just don't want to lose my time trying to see if I violate any software patents: I suppose that any skilled mathematician could be able to prove that there exists a morphism from the algorithms I have developed to patented algorithm.

What I want is to publish the library without having to live in the terror to be prosecuted by USA justice. I am not living in USA, and I have a European nationality.

What should I do? Can I publish my code on gitlab or github? Should I write a license that explicitly forbid the use of the library in any country that recognize software patents? Or could I simply be protected by a license that forbid any commercial uses?

  • @MadHatter I know I do not infringe any European law. My concern is USA abuse of extra-territoriality. What I want is not to be responsible for commercial uses of the library in a country where software patent applies.
    – Oliv
    Jun 24 '20 at 9:32
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    A relevant question is why do you think your code "may violate software patents"? Are you reimplemeting a patented algorithm? Or using patented code in your implementation?
    – Alejandro
    Jun 24 '20 at 13:31
  • @Alejandro I have no idea. Last time I checked for a patent, it was for cooling of solar panel and it appeared that in USA there was a patent for the idea of cooling a photovoltaic panel. The hack used by the patent troll who authored this patent was not to say that literally but by listing all possible cooling technology and applying them on the back side of a photovoltaic panel. After that I have worked in space industry. Once again we had a lot of trouble with USA patent and laws even for saling things from european to an asian country.
    – Oliv
    Jun 24 '20 at 13:57
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    @Alejandro So my experiment tell me that the major part of patent published in USA are not even legal in USA but you have to prove it, and whatsoever, those patents are used to attack other country interest. I have read few software patent. Those patents are too vagues to be serious. I am sure any skilled logician can prove that a piece of code violate thousands of patents. I just do not want to think about it, this is a total waste of time. I want to find a way not to be responsible for all the patent violations that are in the library I wrote.
    – Oliv
    Jun 24 '20 at 14:05
  • Patents are civil law; prosecution is criminal law. You're mixing two concepts here.
    – MSalters
    Jun 25 '20 at 9:03

What I want is to publish the library without having to live in the terror to be prosecuted by USA justice. I am not living in USA, and I have a European nationality.

I would contact European open source organizations (like APRIL and AFUL - I am personally member of both) and perhaps the embassy (scientific advisor) of your country in the USA. See also the CeCILL license and the EUPL one.

You might also take advice from Debian or Ubuntu communities. In France, see also Systematic/GTLL.

In practice, you could choose to not care at all (it is probable that your library won't be a planetary success) or to pay a lawyer. I am not a lawyer. If your library is very successful, Google might buy your business. But don't expect that.

If you are paid by some organization to code your library, ask your client or employer for legal help.

In 2020, software patents are just a business game. For mega-corporations (see Google vs Oracle) they do matter. But for a private individual or an SME, they might not matter much.

Of course, things are different if your library is a cryptographic library (in France, it might be considered as some weapon) or just a GUI widget. In Europe, the GDPR is a serious thing and potentially impact a lot of software.

Read also the Simple Economics of Open Source paper.

See also some references inside this draft report, and this related answer.

My opinion is that it is more probable that your open source library would never be used (or you being shot by some crazy person in the USA holding a gun, or you been hit by a bus), than you being prosecuted in the USA.

I am not a lawyer

In France, see Article 323-1 du code Pénal. And the works of Xavier Leroy (including talks at Collège de France).

  • Merci l'article 9.4 du Cecill 2.1 est exactement ce que je cherchais!
    – Oliv
    Jun 25 '20 at 13:58
  • Pour info, je suis payé par le CEA, et j'y développe du code GPLv3+, pas CeCILL. Jun 25 '20 at 14:00
  • Pour quelle raison le CEA préfère la GPL?
    – Oliv
    Jun 25 '20 at 14:03
  • Je ne me sens pas autorisé à répondre, mais c'est une histoire de gros sous (et de contrats). La Commission Européenne connait peu CeCILL. Jun 25 '20 at 14:04
  • Surprenant... surtout quand on considère les sujets de recherches du CEA. Un grand merci pour tous ces tuyaux, je vais essayer de plonger, sans me noyer, dans cet univers légal!
    – Oliv
    Jun 25 '20 at 14:19

Patents are a national affair and each country's patent office can only grant patents that apply to that country's territories.

Within the EU, the patent laws have been harmonized to a large extent and the EU patent office has been granted some powers to act on behalf of each member country's patent office. Similar agreements may exists in other parts of the world, but the only global agreement is on some filing procedures to make it easier to apply for a world-wide patent without having to contact 192 national patent offices. Each national patent office will still evaluate the application against its national laws.

This means that you cannot apply for a patent in the US under US law and have that patent apply in the EU.

As a patent grants its holder the exclusive rights to control making, using, selling, offering for sale, and/or importing devices embodying the patent, you have to avoid doing one of those things in a country where the patent has been granted if you want to avoid being sued for patent infringement. This effectively means you would have to make sure your library is not available to people from those countries.

  • By available, you certainly mean legaly available? Could a license file distributed with the source code be used to make the library not legaly available in those countries? Could the fact that the library is distributed by company registered in USA (gitlab, github) be a problem?
    – Oliv
    Jun 24 '20 at 13:25
  • @Oliv: Gitlab is legally Dutch, i.e. EU.
    – MSalters
    Jun 25 '20 at 9:06
  • @MSalters Great! Thank you! Is there a notice to warm poeple the code is known to be legal in EU and that, for other juridicsion, we do not assume any infrigement?
    – Oliv
    Jun 25 '20 at 10:28
  • @Oliv: Why would you give such a promise at all?
    – MSalters
    Jun 25 '20 at 11:08
  • @MSalters No reason indeed. And according to this answer I must make sure the library is not available to poeple from countries where software patent are recognized. I would like a notice/license that say that a client of this library is responsible for the use of this library in any country which recognizes software patent. Is not there any such license?
    – Oliv
    Jun 25 '20 at 11:58

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