Intellectual property (IP) lawyer Edmund J. Walsch warned attendees at September's Embedded Systems Conference (ESC) in Boston that unless a company has a “well-defined technical and legal strategy,” using open source software imperils IP rights and increases the risk of lawsuits. Walsh works for Boston lawfirm Wolf, Greenfield, & Sacks.

According to Walsch, embedded systems manufacturers should be sure they understand completely the rules and risks in the fast-changing area of open source IP law before attempting to use open source code. “If you distribute software that includes open-source code, you must propagate the open-source terms, and you could lose the rights to your proprietary software,” Walsh asserted.

Walsch's recommendations for safe open source code use include:

• Know what you need. When you use open source, you're typically giving up some IP rights, but if your product does not depend on IP rights, that may not be worth worrying about. However, if you do have valuable intellectual property, protecting it is paramount.
• Acquire with care. Established open source software, like Linux, has been vetted by a large user community. But using little-known open source code is much riskier because you don't know who really wrote it or if it infringes on someone's IP rights.
• Quarantine it. Take technical and/or legal steps to separate OS code from proprietary code. If your product can legally be viewed as a derivative work of the open source code, you can lose rights. To avoid that, proprietary code should be dynamically linked to open source code through a previously established interface. To avoid implied licenses of your patents and other IP rights, consider creating separate subsidiaries: one that owns your IP rights and another one that sells products incorporating open source.
• Follow open source rules upon distribution. Hew to all license provisions. “There are a myriad of open source licenses, and companies must know the possibilities to develop effective product-marketing and product-acquisition strategies while protecting their intellectual property,” Walsh said.
• Watch for changes. The legal environment regarding open source is in flux; keeping up with the latest rulings and litigation trends is crucial.

Wolf Greenfield specializes in intellectual property law, including patents, trademarks, copyrights, trade secrets, IP transactions, and related litigation. The firm has practice groups in biotechnology, chemical, electrical, and computer technologies, mechanical, litigation, and trademarks, and is experienced in joint ventures, franchise and distribution agreements, confidentiality agreements and software licenses.

 
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