Open Patenting to Prevent Enclosure of the Open Manufacture Commons

[Nathan W. Cravens]

The Tucson Amateur Packet Radio Noncommercial Hardware License (TAPR
NHL) seems decent ground to build from. A major problem arises
however, the license does not prevent the patenting of hardware
produced.

For Open Manufacturing to flourish, there must be patent prevention in
the form of an Open Patent to protect the manufacturer from legal
disputes. An Open Patent, for our purposes, will prevent any entity
from owning what is created.

So it appears we need to move forward and advance the open hardware
licensing to open hardware patenting. What are our options for
protecting Open Manufacturing in this way? Is there a formula already
written or do we need to write one? What sort of government
involvement are we talking about here since we are dealing with patent
rather than licensing?

[Josef Davies-Coates]

I was going to say "isn't that what Should Exist is for?" but it seems to have shut down for a refurbishment:

http://shouldexist.org/

I think their idea was to simply put things into the public domain (because then they shouldn't be patentable).

Josef.

2008/9/21 Nathan W. Cravens <knu...@gmail.com>

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Josef Davies-Coates
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[Vinay Gupta]

Ugh. The purpose of patents is to incentivize people not to keep trade secrets.

The problem is as follows: the GPL has force because of copyright. However, taking an idea from a copyrighted source, innovating, then patenting the innovation is *very* likely to be impossible by virtue of the way IP law works. Imagine if it was possible, but in the hands of BigCos - "you may use this software product, but anything you draw with it is only patentable if we are given rights to the patent too" - it's just not clear to me, at all, it's possible to restrain patent *except by patent.* 

I may be wrong about that - the classical Non-Disclosure Agreement may well prevent patents - but then it's basically a way of dealing with a trade secret.

I have some lawyers who're willing to give opinions on this kind of licensing work, so if you guys can write up exactly what you think the license can do in really a great deal of clear detail, including some notion of what basis the license has for enforceability (copyright, patent, contract law, some other area) I can possibly get them to make an assessment and/or help draft.

I'm having them do some work on a license I'm working on for items which have already been patented to allow use of the patents by small entities. Kind of an alternate approach, but patent is real, so we have a choice of work with it or ignore it, and getting any kind of resource pooling in the patent domain seems to require patents and patent pools, so...

I'm open to all options, of course, but I just wanted to raise the issues.

Vinay

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Vinay Gupta

Free Science and Engineering in the Global Public Interest

http://hexayurt.com - free/open next generation human sheltering

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"If it doesn't fit, force it."

[Nathan Cravens]

The goal of this discussion is to determine a way to prevent an entity from stopping a public work. It needs to deter others from patenting the work or using it for profit, unless participants of the open work decided to license it for purposes of funding.

 

With U.S. law as a reference, patents protect for up to 20 years. Trade secret law touches on indefinite protection of a work, that's useful. What we're looking for is more of an 'untrade known' (law?).

 

If there is a way to prevent unwanted proprietization of open works without manipulation of the state apparatus, that would be ideal. If not, it looks as if we'll need a few lawyers and GNU guys to jump into the conversation.

 

Nathan

[Vinay Gupta]

Publishing protects your work. But somebody can then patent all the logical extensions *around* your work, and if they can meet a fairly low standard of "due and necessary invention" for that extension, you have no recourse - you can't do whatever it is they patented.

OTOH, if you patent, and put it under a license with viral properties, they can't use your stuff unless they comply with your license, so there's some protection there.

Publishing, however, is *cheap* and we can all publish on the web on a daily basis (blogging) which gives vast protection. I think that patents need to be reserved for very large jumps, because anything else is just burning money rather than solving the damn problem.

Vinay

-- 

Vinay Gupta

Free Science and Engineering in the Global Public Interest

http://hexayurt.com - free/open next generation human sheltering

http://hexayurt.com/plan - the whole systems, big picture vision

Gizmo Project VOIP : (USA) 775-743-1851

Skype/Gizmo/Gtalk  : hexayurt

Icelandic Cell     : (+354) 869-4605

"If it doesn't fit, force it."