[Discuss] hardware != patentability

Jeffrey Warren jeff at publiclab.org
Thu May 22 19:30:55 UTC 2014

Just trying to fork off this thread here (from this one:

Thanks, yes, I agree that there are not a lot of easy hooks to hang open
hardware's legal agreement upon. But licensing efforts like the CERN OHL
have used the copyright of the design files and the need to "distribute"
those files as a kind of hack, and while it doesn't as broadly cover all
possible scenarios as copyright does over written code, it's good for a lot
of things.

I just think that saying "open hardware licensing is based solely on social
norms" is a bit overstated - the CERN OHL has legal provisions which make
it legally quite difficult to circumvent the sharealike provision. That's
not to say it's legally bulletproof, but people aren't just being

I also liked what you said about there being different parts of a project.
If there is open source software, open source documentation, and open
hardware licensed designs, then to some degree the value of the project is
greater as these are all considered together, and it becomes less useful to
circumvent the open hardware licensing if you can't circumvent the software
and docs along with it.

Anyhow, as Javier Serrano has written on this list, there has been a lot of
thought put into this by a wide variety of lawyers, and the discussion
continues. Sometimes it feels like people dismiss the whole idea of OHS
licensing without having looked at how the existing licenses work. I'm not
saying you did this, just concerned that people reading on this list might
make uninformed assumptions.

Thank you!

Matt Maier <blueback09 at gmail.com> wrote:

Maybe I wasn't clear. What I meant was that the only area of law, other
> than contracts, which can regulate the practical physical artifact is
> patent law. Anything tangible which is useful, rather than just pretty,
> which is the area open source hardware is primarily interested in, is
> covered by patents or contracts.
> Contracts aren't attractive because they only apply between the two
> parties which entered into them.
> That leaves patents, which aren't relevant because they are so expensive
> and so specific.
> Open source hardware needs an area of law which allows for the same kind
> of cheap and broad coverage of copyright. But there's nothing we can "hack"
> to get that coverage (like copyleft) and there's nothing on the horizon.
> So I don't think legal discussions are going to find any traction on the
> hardware side of open source hardware. The software side is already well
> served by FLOSS licenses and the plans/instructions side is already covered
> by CC (apparently it has three sides).
> That only leaves the nebulous idea of politeness and cultural norms to
> enforce any kind of restraint on how to handle the hardware. At least,
> that's how I frame the situation.

On Thu, May 22, 2014 at 11:56 AM, Jeffrey Warren <jeff at publiclab.org> wrote:

> >  the hardware itself can only be covered by patents
> I think i have to disagree -- i think many people think a bit too narrowly
> about what "hardware" is -- lots of things aren't patentable, or the
> patents have expired, and we may still be interested in a share-alike
> provision (where possible) and/or in the collaborative, open source
> development model. We can't ignore patents where they are applicable, but
> hardware is not exactly the same thing as patentability.
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