[Discuss] Legal Meetup Nov. 11th in NYC

alicia amgibb at gmail.com
Wed Oct 23 17:54:57 UTC 2013

Great questions Matt.

My goals are:
1) Figure out the best way forward to partner with lawyers who want to help
us, which is more or less purely business relations.
2) Obtain more education to pass along to our community backed by experts
in the patent process for what will formally work and what won't work for
oshw / laundry labels and work toward the layering solution.
3) Find out what OSHWA should be focusing on in terms of formal legal
stuff, we heard a bit about this from Michael Weinberg at the Summit, we
want to keep that conversation going to know if for example, should OSHWA
be interfacing with the USPTO? These folks would know the people to talk to
there, or these folks would tell us if it's a waste of time from their
experiences with the USPTO. But a formal opinion of how we go about calming
fears surrounding the USPTO would be great to disseminate to the community.

I would say this discussion will be 2 fold in broadness of what open
hardware devs can do to protect themselves, then hone into the specifics on
correctly branding partially open projects and figure out how to best move
forward with a solution. In terms of your prior art question, legally prior
art is enough on it's own, we're not trying to change that. But confirming
advice on how to formally address it within the community would be nice as
OSHWA's top question we get asked is people fearing their oshw prior art
won't be found by the USPTO. So if it eventually happens where someone's
oshw gets patented, and from this meeting we have created a partnership
with EFF and Julie can help that person fight the overlooking of prior art
and patent, that would be a great outcome. I guess another goal is to get
the legal backing that makes people more and more comfortable publishing
their work as open source. (So far, giving people a calming
manatee<http://calmingmanatee.com/> hasn't
comforted enough people into oshw, so we need another tactic.)

Great advice for posting prior art!

So far we don't charge for the logo or OSHWA branded oshw mostly because we
don't want to turn into the USB problem  20 years down the road :).
Gatekeepers by definition are not open, so OSHWA tries to stay away from
that. Self labeling and self policing has worked very well so far, as you
and Marco point out, but I don't know that the entire community would want
to change that to include a payment for bad behavior.

What I have heard from the community is that inventors want more options.
Options to release some things open and some closed and have a clear
direction about how to post that correctly. Options like the creative
commons has options, but the issue we come up from a legal stand point is
that these would all need to be in the form of social contracts. As I
understand it, a license would only actually holdup in court if you had a
patent to license your thing from, since oshw doesn't include obtaining
patents, we can't really make licenses. Enter creative lawyering? Anyway,
that last bit was maybe a bit of a tangent from your email there.


On Wed, Oct 23, 2013 at 10:37 AM, Matt Maier <blueback09 at gmail.com> wrote:

> Alicia,
> Regarding the discussion points, what is the goal(s) those questions are
> working towards? Are you trying to obtain some kind of protection for OSHW
> work aside from the prior art exception or are you trying to confirm that
> the prior art exception is enough on its own?
> Do the discussion points reference open hardware developers in general, or
> OSHW branded projects in particular?
> Marino,
> The Thing Tracker could work as a central point for searching open
> hardware projects http://thingtracker.net/
> If someone's project isn't actually open, then why would they pay to
> certify it as open? If it's not open then it shouldn't be certified as open
> EXPECIALLY if they offer money.
> -Matt
> On Wed, Oct 23, 2013 at 3:22 AM, Marketply <contact at marketply.org> wrote:
>> **
>> I'd love to attend.
>> And will add thoughts now as well.
>> *Defensive publishing tags:*
>> Make it as easy as possible for the USPTO to find open hardware. Use
>> tags. Build a distributed, official database for the tags. With backups
>> hosted by various other supporters (websites) of open technology. Or a
>> BitTorrent type of strategy where all info from open hardware is
>> distributed and contains tags.
>> *Publish often:*
>> Defensively publish to the USPTO, quite often, and each time include a
>> link to the hardware info in database.
>> *Include examiners:*
>> Build something that functions like the ip.com system<http://ip.com/publish/offensive-publishing.html>.
>> According to their other page <https://publish.ip.com/>:
>> " *Assure that your publication can be found and cited by patent
>> examiners around the world by publishing to IP.com's publishing services*"
>> If they can get patent examiners to browse their ip.com systems, we can
>> get examiners to browse an open hardware system.
>> *Super easy certifying:*
>> Have people self-certify themselves, as suggested by Marco Perry<http://lists.oshwa.org/pipermail/discuss/2013-February/000207.html>.
>> Except have them be sponsored by people in the community, and to pay only
>> if the community calls BS on their hardware being open. Otherwise it's free
>> to certify, and this includes for companies.
>> Each time BS is called on a person or company, their fine to pay
>> increases. And their license is immediately void for the hardware that
>> failed in being open.
>> An annual crowdfunding plus any foundation grants helps to cover costs.
>> *Allow video as description:*
>> It's getting easier to webcam your activities<http://www.kickstarter.com/projects/1590403900/soloshot-go-film-yourself-automatically>and to add
>> expandable info<https://make-dev.mozillalabs.com/en-US/projects/interactive-biography>into video.
>> Videos <https://webmaker.org/> can say so much more than words, and you
>> see the action and nuances of creating something. Soon we'll have cameras
>> that can swivel to follow what your hands do. Or people can open-source
>> make it!
>> 😃,
>>  Marino Hernandez
>> (just a founder of Marketply <http://www.marketply.org/>)
>> 203-429-4205
>> On October 23, 2013 at 1:42 AM Alicia Gibb <pip at nycresistor.com> wrote:
>> Hi all,
>> OSHWA is having a small meeting in NYC on the NYU campus with Julie
>> Samuels, the  Mark Cuban Chair to Eliminate Stupid Patents branch of the
>> EFF, <https://www.eff.org/about/staff/julie-samuels> and Jason Schultz,
>> a professor at NYU who has researched many aspects of defensive patents<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2298593>.
>> They are both interested in helping the oshw movement.
>> Unfortunately, the room we're meeting in is small, so we are having a few
>> OSHWA board reps present and can only bring in 5 or 6 folks. We wanted to
>> open the meeting to any folks on this list eager to discuss lawyer-y stuff.
>> The meeting will be on Nov. 11th from around 10am-2pm though I haven't
>> gotten exact times yet. Please let me know if you have interest in
>> attending, and if you can't attend but have thoughts please send those my
>> way too.
>> Below is a summary of points we'll be talking about though the direction
>> may shift during as the day takes course. From the questions we get at
>> OSHWA, we feel the community would benefit from further legal knowledge in
>> these areas.
>> *Background:*
>> Oshw is typically innovated faster than the patent system can keep up
>> with, and the patent system is too expensive for small businesses. This was
>> much of the basis that the current oshw definition was founded on.
>> *Discussion points:*
>> 1) Fears of someone patenting pre-existing oshw work and the USPTO fails
>> to find the prior art. (Hasn’t happened yet to our knowledge.) Includes
>> fears that the social contract as definition won’t be enough to hold up in
>> court. Similar case studies could help?
>> 2) Is there another area we could put aspects of oshw that is not in the
>> realm of a patent, but rather User Agreement or Terms of Service?
>> 3) Continue the discussion / brain storm implementation of the layering
>> of openness / laundry label from the discussion list<http://lists.oshwa.org/pipermail/discuss/2013-February/thread.html>.
>> Thanks,
>> Alicia Gibb
>> _______________________________________________
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>> discuss at lists.oshwa.org
>> http://lists.oshwa.org/listinfo/discuss
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