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I have been searching for an open source license to use for my project. There are many little things i would like to have but only one thing that truly matters - I don't want anyone to use my projects libraries or the project itself to build something that they can then patent.

This is because the project is a charity about supplying free services if they are deemed essential or a basic human right. So it will not do if a third party creates, for example, a medical tool that they charge for, and then prevents us building a free alternative.

On the other hand, we do want a third party to do this if they themselves are looking to give their service for free as it reduces our work load. I could talk you through licenses I have considered thus far but perhaps its better to let you answer free of influence.

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    It seems to me that your third paragraph has some incorrect assumptions - just because they can't patent it doesn't mean they can't charge you for the software (or use of a hosted service), right? Jan 18, 2017 at 19:01
  • It seems odd to me that it went unmentioned that if you publish your code as open source (especially using a public service like Github/Gitlab, which has strong time-stamping), and someone later creates a patent based on that code, any attempt to enforce that patent on you is likely to have issues since you have a good chance of showing prior art (thereby invalidating the patent entirely). There is still some risk, based on derivative works, but choosing a open source license with patent protections likely would cover that. Of course, speaking with a lawyer would not hurt. IANAL/IANYL
    – xzilla
    Aug 5, 2019 at 22:55

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"Using copyrighted material to build something patentable" doesn't describe a concrete prohibition. In reading your source code, the other guy might gain insight into how to automate a widget-press, which could in principle be patentable. Copyright law allows you to restrict how others copy your code, but does not allow you to protect underlying ideas. In a sense he has used your product to build something, and in another sense he hasn't – you would need to describe the prohibited uses with greater precision. The question of whether something is "patentable" is pretty much determined after the fact – if a patent is granted, it was patentable. Perhaps you have in mind something like "if you use it, and get a patent, then you grant us permission to make a competing object that we will distribute for free", which pretty much obliterates the point of a patent.

You can't use copyright law to restrict manufacturing. Some manufactured goods contain actual software, in which case you can prohibit copying your code into the device. A non-commercial license would do that, and more (it would also prohibit incorporating your code in a non-patentable program). If you want to get more complex than that, you need to hire an IP lawyer.

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There is no free or open source license that would prohibit patenting.

This would go against the spirit of open source in general and would be a restriction in usage which would make the license non-free.

There are however several licenses that speak about patents.

  • Some licenses provide for an explicit patent licenses such as the Apache 2.0,
  • Some licenses are muted on the subject and may provide implicit grants (such as the BSD licenses)
  • and licenses some contain "patent non-assert"-like terms and non-assert terms like the GPL 3.0:

To prevent this, the GPL assures that patents cannot be used to render the program non-free.

So if you want your code to be licensed under a mainline, well-known and community-accepted license, you should consider using an existing licenses such as the Apache 2.0 or the A/L/GPL 3.0 licenses.

Otherwise, you could create your own non-free, proprietary license with the risk that none will ever consider using your software because of its uncommon terms.

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Hire a lawyer to draft a licence that does exactly what you want.

As a suggestion, start with a Creative Commons Attribution-Share Alike and add a proviso that you must be given a perpetual, non-repudiable, royalty free licence to any patents that utilize your software.

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