Intellectual Property Rights and Open Source Software - A Cocktail Case Study This article explores the interplay between intellectual property rights (IPR) and open source software (OSS) and considers whether OSS and IPR can co-exist. Introduction
The Scenario
First, it is necessary to consider what open source software (OSS) actually is.
Assume that you have a successful small business that sells cocktails in cans. The cocktail is hand-mixed, which limits production. You have a plan to upscale.
Wikipedia® gives the following definition (https://en.wikipedia.org/ wiki/Open-source_software): “Open source software (OSS) is computer software that is released under a licence in which the copyright holder grants users the rights to use, study, change, and distribute the software and its source code to anyone and for any purpose.” The Open Source Initiative® (https:// opensource.org/osd) suggests that a licence is an open source licence if it meets many requirements, including requiring that the source code is disclosed, that modifications can be made and that such modifications may be distributed under the same terms as the licence of the original software. There are other definitions, but it is clear that OSS is software that is released under an open source licence. There are many types of open source licence, with varying rights and obligations. This article considers whether it is possible to use open source software when developing products for a business and also use IP rights to protect those products and, if so, what issues need to be taken into account. These issues are explored in the following fictional case study.
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You have developed a mixing apparatus that seeks to replicate your hand mixing. The apparatus has input taps that control the flow of the cocktail ingredients, and a motor to drive the mixing. You have also devised algorithms to control the apparatus and are currently developing software code to implement those algorithms. You plan to develop the mixing apparatus, with a view to making fairly small batches of the cocktail in the short-term. This will serve as a proof-of-concept phase. The longerterm plan is to sell the technology (and the intellectual property protecting that technology).
The Software Code The cost of developing software code for your system from scratch is high, but your software developer has
identified OSS modules that could significantly reduce both the timeand cost of developing the software. As shown in the figure below, two code modules are envisaged: an “Ingredient Selection” module and a “Mixer Control” module.
The Ingredient Selection code can be modified from an existing OSS selection algorithm. This requires a simple tweak to the software that will take almost no time at all. The Mixer Control code is more complex and will require the writing of bespoke software code. Even here though, a number of OSS modules can be reused; for example, many sensors are required (e.g. temperature sensors and pressure sensors), which are available with OSS modules for translating module inputs and outputs. Such modules would be called by the main (bespoke) Mixer Control algorithm.
OSS Licences What impact does the use of OSS have on the plan to sell the intellectual property in the cocktail-
