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The Apache 2 open-source license allows patents, does this mean it could be possible that an apache 2 open-source project would have to be removed if a company demonstrates it has a patent based on or using the project?

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  • Why the negative points?
    – newlogic
    Oct 19, 2020 at 21:28
  • The code would be "prior art". Especially if it is open source and well published. And definitely if someone other than the author used it to create the patent.
    – gnasher729
    Oct 19, 2020 at 21:32
  • Apache 2 grants a patent license, does this override the fact it would be prior art?
    – newlogic
    Oct 19, 2020 at 22:23
  • 2
    Whether something is "prior" is determined by the laws of physics, not by the license. Oct 20, 2020 at 6:37
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    I can see nothing in section 3 of Apache 2 that would require the software to be removed.
    – Simon B
    Oct 20, 2020 at 8:17

2 Answers 2

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Any piece of software can be encumbered by patents. That is not something that is specific to the Apache license. The Apache license just acknowledges the fact and includes a patent license in addition to a copyright license.

If somebody holds a patent, then they can force you to remove your project that infringes on the patent from the internet, unless they either have given you a license to use the patented technology or you can prove in a court of law that the patent is invalid (for example because you can prove the relevant part of your software has been publicly published before the patent application was made).

The simple fact that a piece of code is licensed under the Apache license does not mean users of that code are protected from all patent claims. It is, for example, possible that a contributor makes a change that causes the code to infringe upon the patent of someone who is not involved in the project at all. That person has not suddenly given the project a patent license. Only if someone implements a patent they themselves hold can they grant a license for that patent.

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The patent is inherently invalid, thus legally you do not have to. Whether you want to fight that battle, though, is another matter.

(Your app predates the patent, thus showing the idea was already known.)

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