The GNU General Public License Version 2 (“GPLv2”) is a popular license for open source software. Despite its importance, only a few GPLv2 cases have been litigated in the courts. In these litigated cases, the plaintiffs claimed breach of contract or copyright infringement against defendants. However, in XimpleWare v. Ameriprise, the plaintiff explored a novel patent-related avenue for open source software authors to attack vendors and customers of open source software. Specifically, XimpleWare alleged direct patent infringement against Versaware, a software vendor, and Ameriprise, Versaware’s customer, for distributing XimpleWare’s GPLv2-licensed software in violation of GPLv2’s copyleft provisions in section 2. This Article analyzes (1) the merits of XimpleWare’s direct patent infringement claims against Versata and Ameriprise, including whether a court would likely have inferred implied patent rights and conditions on such rights from GPLv2 terms; and (2) the implications of such claims for vendors and customers of software licensed under GPLv2. The Article suggests that an author may have a stronger direct patent infringement claim against a vendor that sells software incorporating the author’s GPLv2-licensed source code than against the vendor’s customer who merely purchases the software and provides copies of it to its workers. Lastly, the Article provides practice pointers for vendors and customers of software licensed under GPLv2 moving forward.
General Public License Version 2: The Risk of Direct Patent Infringement,
11 Wash. J. L. Tech. & Arts
Available at: https://digitalcommons.law.uw.edu/wjlta/vol11/iss5/2