Entry

Four Dirty Words: Intellectual Property, Trademarks, and Patents

by: Derek Jones on: 11/2/2011

The content in this article is neither legal advice nor a legally binding interpretation of the licenses discussed, including those distributed with EllisLab products. We are sharing our opinions, thoughts and conclusions which we hope are helpful and spark meaningful discussion. You should consult an attorney with questions regarding your specific legal needs and the terms or interpretation of any software license.

Dirty words in the sense that the connotation is often in taking and restricting rather than giving and creating.  The truth lies somewhere in-between.  This article seeks to discuss trademarks and patents in very general terms, and inform on how intellectual property interacts with your choice of software license.

Intellectual Property

Intellectual Property (IP).  If you ask most people, they would say that IP is comprised of the intangible ideas that a company claims ownership to, and the tangible works that stem from those ideas.  The meaning of the term itself is debated, especially by companies who would like to broaden the scope of ideas and works that they desire to claim sole access to.

And it’s easy to see why some don’t like it.  It seems, particularly in the United States, to be an umbrella term that continues to grow in size and scope (most of the information in this article pertains to the United States; each country governs most of these issues independently).  The concept of IP sparks issues like DRM, registration call-backs in software, and some claim it even threatens free speech.

On the other hand, there is some truth to the assertion that people need to have incentive to create and release their work, namely, being entitled to benefit socially, monetarily, or otherwise from their own creation.

Obviously EllisLab has some “intellectual property” that it wants to retain rights to benefit from.  As does any commercial software company.  So for the most part we think it’s a good thing for healthy enterprise and economy, but boy is it easy to begin overreaching.

One important point is that copyright, trademarks, patents, etc. all have their own laws and regulations, so you have to be careful when talking about IP that you don’t cross over concepts from one to the other, as the rules are typically different for each.

Trademarks

Trademarks are a way of identifying the source of a good or service of one party from that of others.  It’s not about owning content, it’s about owning identification and association with a particular word, phrase, symbol, design, etc.

We regularly see in the PHP community the execution of good ideas with bad names.  Meaning, the developer did not perform due diligence before choosing a name to see if they were free to use it.  For this reason, we recommend doing adequate research ahead of time when coming up with a name for your product.  Check to make sure the name has clearance, and is not already used by someone in your industry.  That it is not such a common word (i.e. ‘paper’, ‘application’) that is impossible to use as a trademark.  That includes domain names.

Can this be frustrating?  Absolutely.  We have countless times rejected clever, witty, or desirable names because of prior use and identification with something else.  It’s a bummer every time.  But doing so is worth it, because you are demonstrating respect for that other person, and also for your own work, taking adequate steps to ensure you aren’t inviting trouble for yourself at a later date.

Patents

We don’t have a lot to say about patents, as to date we haven’t engaged in the business of patent writing.  Conceptually, the good part of patents is that it allows inventive works to be shared publicly, while allowing the creator to have sole benefit (a temporary monopoly) for a short period of time.  It’s an incentive to create.

The bad part is easy to see though, especially with companies who exist and make money not by creating but by filing or buying patents that they have no intention to use, solely for the purpose of extracting royalties from people who are “infringing”.  That is in quotes because in many cases it seems that there is no real infringement, but a very large company with deep pockets extorting small companies or individuals who even if they were not infringing, would bankrupt themselves trying to fight it.

Relation to Software Licenses

These topics all relate to software licenses in that you want to choose a software license that reflects your conclusions about all aspects of IP.  Like code, all of these things—copyrights, trademarks, patents, etc.—can legally be licensed for use to third parties under any terms the owner wants.

So when choosing a software license, you’ll want to make sure that you are only licensing the things that you want to license to others, and under terms that you accept.

As highlighted yesterday, one example is when choosing the GPL.  If you include trademarks embodied in the original work, you could potentially be licensing the trademarks under the same terms as the GPL unless you supplement the terms of the license (see ยง7).  Other licenses might even put your trademarks into the public domain.

Some software licenses explicitly exclude the use of contributors’ names and trademarks, and it’s possible that these exclusions aren’t even necessary.  If you assign value to your trademarks, though, you’ll probably want to err on the side of caution.  How much would you be hurt financially and emotionally if others were somehow allowed to use your trademark or patent because of your choice of software license?

For us, OSL 3.0 has good provisions for both trademarks and patents and is free of a political agenda with respect to either.  It ensures that licensees know that trademarks do not come free with the license, but a license for all included patents does.  And if anyone invokes a lawsuit over a patent, their rights granted by the license are immediately terminated.

All in all, these can also be complex issues to navigate when choosing a software license.  An overly-paranoid view is probably not healthy, but neither is one that pays no heed, so we hope that we have at minimum raised some awareness that might otherwise not have been there with how IP comes into play with your software and how software licenses in turn can impact your IP.

References

Further reading on the topics discussed.

http://www.gnu.org/philosophy/not-ipr.html
https://www.eff.org/issues/intellectual-property
http://www.uspto.gov/faq/trademarks.jsp
http://www.uspto.gov/web/offices/ac/qs/ope/fee092611.htm#tm
http://lahserpatent.com/tm-symbol/

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