Document Type

Essay

Degree Name

Master of Laws

Abstract

This study examines the patent law doctrines of patent exhaustion and implied patent license, and their application to the commercial use of free and open source software (FOSS), an area not thoroughly examined despite the doctrines' otherwise well-established preconditions. The analysis first clarifies the preconditions, scope and key differences of the two doctrines, then applies them to the sale and licensing of FOSS components under the BSD, MIT and GPLv2 licenses. The study addresses the risk that technology companies distributing patented FOSS components may inadvertently dilute their own patent portfolios through exhaustion or implied licensing. It concludes that the patent-related concerns of industry FOSS users and FOSS development projects need not collide: industry users can preserve their exclusive patent rights against other proprietary companies while, through implied patent licensing, contributing to common FOSS patent pools, with the scope of the implied grant differing between GPLv2 and the BSD/MIT license.

Disciplines

Intellectual Property Law | Law

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