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They can't:

We have discovered that there is virtually no chance that the U.S. Patent and Trademark Office would register the mark "open source"; the mark is too descriptive. Ironically, we were partly a victim of our own success in bringing the `open source' concept into the mainstream.

https://news.slashdot.org/story/99/06/17/0213251/esr-on-the-...



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