[Discuss] curious statement on github about oshwa certiification

[Tjeerd Pinkert]

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Sorry to get so far back, just read up to the head of this list...

first things first: I'm not a lawyer, this is my private view on the
matter.

> Message: 2 Date: Fri, 8 Jul 2016 14:37:08 +0300 From: Matt Maier
> <blueback09 at gmail.com> To: The Open Source Hardware Association
> Discussion List <discuss at lists.oshwa.org> Subject: Re: [Discuss]
> curious statement on github about oshwa certiification
> 
> It would probably help to differentiate between licensing the
> hardware and licensing the documentation on how to build the
> hardware. The ideas and physical implementation can be protected by
> patent, maybe. The creative writing and drawing describing the
> stuff that will become physical are automatically protected by
> copyright.

Indeed that is important. Trying to be consice.

> I'm not a lawyer, but generally speaking...

ACK

> ... if you make a CAD file for a hydraulic press, the CAD file is
> "all copyright rights reserved" by default.

ACK

> ... if you build the hydraulic press, the physical object has no 
> protection, but the ideas embodied in its structure could be
> patented, maybe.

ACK

> ... if you try to apply a license to the hydraulic press itself,
> either the physical object or the ideas embodied in it, you don't
> get any protection.

ACK

> You can call it a license but it's really more of a statement of 
> preference. If you patent it you can license the patent.

ACK, but I would say it depends on wat you want with a patent or idea
that can be patented.

If you want to enforce something for 20 years or so, then go for the
patent, pay hard money and more money to defend your claim in court.
This is how I understand the patent system works.

If you want to create the prior art to protect your idea from being
patented by someone else, I think you could try to do it as follows:
Not only document your product in terms of product drawings/design
files, but also as the expression of an idea, in the way a research
article describes ideas. Such a description can also be licenced under
an OHL. I think this will maybe not stop others creating a competitive
device using your invention in a closed product, but at least it
becomes harder to drag you to court if they registered a patent after
you published and say you are infringing their patent.

If I'm not mistaken, such a description can then serve as prior art in
case someone else applies for a patent? Maybe some lawyers can react
on this? How well would this hold in court? Is there jurisdiction?
What does one need to describe/include in an article to be eligible as
prior art? Does an article need peer review? Is publishing on the
arXiv enough? Are there other places where such invention claims are
gathered?
And how then can we point patent attourneys to the existence of it (it
would be best if they find it when they do their search for prior art
thing)?

A middle way is as follows: only register a patent to claim the
invention (I heard the fee is a few 100 euros, if you find a free
patent attourney to write it up in proper language. Any experience?),
but never pay the fee to enable the patent. You will then enjoy about
two years of secrecy and afterwards it is in the database to be found
by anyone applying for a patent. Comments if this is correct? I think
legal implications are clear, the invention is there for anyone to use.

> ... so "hardware licenses" in open source hardware aren't nearly
> as useful as open source software licenses.

Unfortunately not... Although I'm very interested in ways of keeping
ideas out of the patentable realm while not having to go through the
pain of registering them. So if anyone has a more authoritative legal
view on the matter...

If there pop up ways of "enforcing" someone using my invention (can
this be done by putting the description of the invention under a OHL?
I think TAPR OHL aims at this?) or designs to open up their hardware
too, it would be great as this is what many seek to do as far as I
read this list.

Best regards,


Tjeerd
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