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For founders
Open source and patents: what founders should know
We publish some of our code. Does that affect our patents?
Publishing code is a public disclosure with a date, and several open source licences carry patent grants or termination provisions. Both need to be checked before you publish, not after.
Disclosure first
A public repository is available to the public and is dated, archived and searchable. If the code enables the invention, it is prior art against your own later application - and it is trivially easy for an examiner or an opponent to find.
So the sequence matters: file first, then open the repository. Not the other way round.
The licence terms
Several widely used open source licences contain express patent grants from contributors, and some contain patent retaliation clauses that terminate rights if you assert patents against other users. If you both publish under such a licence and hold patents in the same area, read the interaction carefully.
Separately, using third-party open source in a product does not give you freedom to operate. An open source licence grants rights in the copyright and sometimes in the contributors' patents - it says nothing about unrelated third-party patents your product may infringe.
What to actually do
- File before publishing code that enables the invention.
- Read the patent grant and retaliation clauses in the licences you use and publish under.
- Do not treat an open source licence as freedom to operate.
- Keep a record of what was published and when.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
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Not sure whether this applies to your invention?
The honest answer usually needs someone to look at your actual disclosure, your timeline and the prior art. That is a conversation, not an article.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.