[Discuss] hardware != patentability

Sat May 24 07:59:17 UTC 2014

Jeff probably wrote :

> If there is open source software, open source documentation, and open
> hardware licensed designs

Thank you Jeff to replace in mind what might be an Hardware regarding OHL
licences.
That is the starting point, isn't it ?

And then again comes the discussion about what is an Hardware, and is not
an Hardware.

Here are one big question I ask myself, regarding terms of current OHL
licences:
############################
#  Is the term "Hardware"
#  limited to a "Device Product
#  and
#  its source
#  information
#  specification
#  documentation" ?
############################

If so, an Hardware could be :

      0. Device by itself

   1. Device + source information
   2. Device + Software + source information
   3. Device + Processed Material + source information
   4. Device + Service + source information
   5. Device + Software + Processed Material + source information
   6. Device + Software + Service + source information
   7. Device + Software + Processed Material + Service + source information

Then, OHL licences does not cover all forms that a product could be. I feel
that current OHL licence covers only the form number 1.

If not, the term "Hardware" could be opened to many other form of TANGIBLE
THINGS, included, but not limited to:

   1. tangible manufactured things that are not devices, and which can be
   replicate only if a source of information is given with.
   2. tangible manufactured things that are not devices which can be
   replicated without any source information
   3. seeds,
   4. plants (like trees, etc ...)
   5. minerals (like new mineral that could be found or build by someone on
   earth or in space)
   6. moleculars
   7. elementatry components of univers and of material and blcak material
   (known and to be kwown)
   8. etc ...

Then again, OHL does not cover all form of Tangible Things (things we can
touch or see with natural senses or through machines). For now, I feel only
the tangible form number 1, might be covered by current OHL licence.

The, from my humble point of view, the biggest difficulty is certainty to
better define the limits of "what is an Hardware" in OHL licences terms.
Freely,
Antoine

2014-05-22 21:30 GMT+02:00 Jeffrey Warren <jeff at publiclab.org>:

> Just trying to fork off this thread here (from this one:
> http://lists.oshwa.org/pipermail/discuss/2014-May/001083.html):
>
> 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
> respectful.
>
> 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!
> Jeff
>
> 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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