Have open-source contributors ever been sued or threatened with a lawsuit for patent infringement in their contributions? What was the outcome?

The way I see it, there is the "experimental use" defense against infringement, but frequently, open-source software developers benefit from their contributions directly or indirectly (publicity, donations, grants, etc.), so the experimental use defense would be difficult to apply.

2 Answers 2


Have open-source contributors ever been sued for patent infringement in their contributions? What was the outcome?

I do not know of any direct case where a contributor was sued for its contributions for patent infringement, but there are likely quite a few cases where users of supposedly infringing FOSS code were sued. The best example that comes to mind would be Microsoft vs.TomTom about the Linux FAT support.

There is also a case where Red Hat (and may be Novell/Suse) were sued of a workspace switching feature, likely related to either Gnome and/or KDE that both Suse and Red Hat have heavily contributed to.

Also, some of the patent wars that involved Android adopters vs other mobile device manufacturers where at least in part related to FLOSS.

The thing is that patent situations are often settled... It is quite possible that MPEG-LA is demanding licensing fees from users of FFmpeg for instance, and you would never hear about this.

Now, my understanding is that patents are about ideas and their usage: I would tend to consider (but I am likely a misguided non-lawyer) that the mere fact to release FOSS software that may implement a patent may not be infringing. Instead, if I were to start using this FLOSS code, then I might be infringing.

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    You're eliding a distinction between source code and binaries, at least as far as MPEG-LA are concerned. In the FOSS world source code and binaries tend to be lumped together as "software". But the reason why FFmpeg for instance do not distribute binaries, is that it can be considered a product and hence fall under MPEG-LA's patents. Source code is fine because it is not a finished product capable of encoding/decoding. Aug 29, 2016 at 0:32
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    @congusbongus Has this distinction ever been tested in court?
    – MWB
    Aug 29, 2016 at 7:30
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    @MaxB no, because it's not a legal distinction, it's up to the whims of MPEG-LA and who they choose to sue. In reality FFmpeg, source or binary, are both potentially infringing. Aug 30, 2016 at 0:45
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    @congusbongus Just to make sure I grok your point: software can be infringing on patents even when not used? i.e. the mere fact it exists is enough? or it has to be actually finished/packaged software to infringe, even when not used? I would like to enhance my answer so it is clear Aug 30, 2016 at 7:24
  • @congusbongus I'd love to see clarification on this, too. You write that "binaries ... can be considered a product and hence fall under MPEG-LA's patents" but that "source code is fine", but then you suggest that the distinction is that MPEG-LA have merely chosen not to enforce patents against source-only distributions. Which is it? Does source code embodying a patented invention constitute an infringement of that patent, or not?
    – MadHatter
    Sep 4, 2016 at 19:27

There is the case of Versata v. Ameriprise and then XimpleWare v. Versata and Ameriprise, over some GPLv2-licensed XML parsing utility : https://opensource.com/law/14/7/lawsuit-threatens-break-new-ground-gpl-and-software-licensing-issues

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