The fear of infringement software patents is one of most critical issues that discussed widespread in the free software community especially from the entities which want to use Free and/or Open Source Software.
The institutions that use computer software run the risk of being sued for either copyright or patent infringement. However, the potential for an infringement lawsuit is more likely if the institution is using FOSS because, unlike proprietary software, FOSS is developed in an open environment where code is shared and modified by numerous unaffiliated parties. This code sharing increases the possibility that proprietary code may be inserted in the FOSS at some point during the development process.
== Institutions can mitigate the Patent infringements risk by ==:
• Retaining qualified legal counsel to advise the institution concerning FOSS licensing.
• Implementing enterprise-level policy and business rules that mandate strict adherence to license terms and conditions.
• Using automated tools to track licenses and changes.
• Understanding the consequences of combining FOSS and proprietary software.
• Evaluating the strength of any indemnities.
• Developing contingency plans that will allow the institution to continue operating even if infringing code is taken out of production.
• Using a control mechanism to ensure that all code contributed to FOSS projects is original and written onsite.
Example: LiMux project by the city of Munich
LiMux is a project to migrate city of Munich’s software systems from closed-source, proprietary Microsoft products to free and open-source software. The city council voted in May 2003 to go ahead with planning and approved the call to bid in June 2004 before the project was successfully completed in late 2013, which involved migrating over 15,000 personal computers and laptops of public employees to free and open-source software.
In summer 2004, the introduction of software patents in Europe being hotly discussed, the project was put on hold, and the city commissioned a legal study to clarify the patent-related legal risks it would be exposing itself to by using open source software. The result was that software patents concern proprietary software to the same degree as free software, so the city would not incur any additional risk by using this type of software. In the course of these considerations, Munich also became a vocal opponent of software patents.
Finally, FOSS community leaders such as Richard Stallman, Alan Cox, and Linus Torvalds, and companies such as Red Hat and MySQL, and community groups such as FSF and FSFE all believe that patents cause problems for free software. They also have complained that software patents are overly broad.
References
Legal aspects of free and open source software EU's report (PDF)