If we're having a discussion about copyright, then free and open source licenses depend upon strong copyright (IP) and ownership of the software, i.e. I'm explicitly using my ownership rights in my property to give others use of the software.  (Another way to say this is "Free" and "Open Source" are not the opposite of "Proprietary".)  

If we're talking about patents and software, that's a different discussion.  Is this what you meant?