The GPLv2 and GPLv3 has anti-patent clauses.

The GPLv2 patent clause is "liberty or death":

For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

The GPLv3 patent clause requires all contributors to grant a royalty free patent license to all downstream recipients:

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

Most other free software licenses, including the MIT (Expat) license does not mention patents at all.

If I license my software, containing patented ideas or methods where I own the patent right, under the MIT (Expat) license, will I be able to collect patent royalties from downstream recipients that use this MIT-licensed software?

Does this depend on jurisdiction?

Will disclosure or non-disclosure of my patents (in README or similar) affect my chances of collecting royalties?

An answer that cite relevant case law will be preferred, but if no case law on this exists, a well-argued answer will be accepted.

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    Software isn't patented, but it can implement ideas which are patented. It would probably help this question to be precise. – curiousdannii Jul 31 '15 at 5:26
  • If yes, it would depend on jurisdiction, because not all jurisdictions allow software patents. – Philipp Jul 31 '15 at 10:04
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    @Philipp. The EU is one of those jurisdictions, but we still have patents like EP 0738446 B1 METHOD AND SYSTEM FOR ORDERING SERVICES, which is a patent for a method to look up the availabilty of a limited resource in a database and proceed to allowing the customer to order it if there are at least one left. I can at least imagine some program that incorporates a software method that violates this patent, even if software patents as such are not allowed in the EU. – Free Radical Jul 31 '15 at 10:52
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    @Philipp It's somewhat misleading to say that the EU doesn't allow software patents. The EU allows patents on algorithms, and such patents can cover a computer executing the patented algorithm. That the software itself isn't patented is legally correct but of little practical importance. – Gilles Jul 31 '15 at 21:39
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    To continue being pedantic, you may want to clarify that you're asking from the perspective of someone who owns the patents. (FFmpeg can't claim royalties for the patents they infringe :p) Also of course it depends on jurisdictions: copyright is worldwide (excluding the fact of different expiry periods) but patents are granted independently in each jurisdiction. – curiousdannii Jul 31 '15 at 23:25

If a license does not mention patents, it does not grant a license to patents.

  1. You hold a patent
  2. You implement some software which uses the methods covered by the patent.
  3. You publish that software and attach an MIT license, or some other license that never says the word 'patent.'

You have not granted any patent rights. On the other hand, you also have not advertised the existence of the patent. Note the usual fine print on physical objects that lists the patents involved. According to http://www.webblaw.com/resources/faq/patents.htm, you can't claim damages from someone who infringes your patent unless you disclose in this fashion. It might also be considered polite to warn people that the use of your software puts them in a position where they need a patent license from you if they realize economic gain.

  • Here is an example of people who are publishing there software under an open source license and advertising their patent to restrict use to non-commercial applications: github.com/pol-is/polisServer. Quoting from their PATENTS file: "Pol.is contains patented technology. This file is a placeholder, and will soon be replaced with a patent grant for non-commercial use. If you are confident that your use case is non-commercial, you can feel free to deploy pol.is" – Zimm i48 Aug 25 '16 at 14:07

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