[p2p-research] patent licensing

[Michel Bauwens]

 Topic: Legal issues in open hardware (lwn.net)
Bryan Bishop <kanzure at gmail.com> Oct 08 03:38PM -0500 ^


Open Hardware Legal Issues
http://lwn.net/Articles/407598/

What I got out of this was this idea: "and use prenegotiated patent rights
to protect both ownership and the right to share, rather than depending on
licenses for protection." However, I am not sure how this is any different
since ultimately it relies on licenses for protection (protection of the
right to share). And, on top of that, demanding every inventor to get a
patent just so he can license the right to share, is way too much overhead.

"""
Free software projects sometimes struggle with licensing issues. The open
hardware community is beginning to face the same kinds of difficulties with
copyrights and patents that the free software community has grappled with. A
presentation by John Wilbanks at the Open Hardware
Summit<http://openhardwaresummit.org/>(OHS<http://openhardwaresummit.org/%3E(OHS>)
in New York discussed how
these concepts apply to open hardware, and
how to surmount the issues using open-source tenets and a "commons" of
patent tools and free licenses.

Open hardware is a relatively new concept. The
OpenCores<http://opencores.org/>project
<http://opencores.org/%3Eproject>and website started in 1999,
primarily as a collecting point for
Verilog IP description files, but produced no actual hardware. SPARC
enthusiasts remember when Sun "open-sourced" the SPARC implementation,
leading to the OpenSPARC <http://www.opensparc.net/> processors in 2006.
Since then, a large spectrum of devices ranging from basic electronic
designs to microcontrollers up to entire FPGAs has been created as open
source. This means that the designs, in the form of design documents, CAD
files, etc., are open in terms of shared ownership, community development,
ready availability, low or zero cost, and permissive licensing, just as
open-source software describes source code with those same characteristics.

The legal issues, however, are tricky, as anyone involved in open-source
software can attest. This is particularly true in a field in which an
invention can be protected by either a copyright or a patent, or even a
combination of both, and that copyright or patent can be licensed in a
number of ways. Hardware has traditionally been covered under patents,
although that is changing as hardware is increasingly described with
documentation rather than physical evidence.

The expense of a patent is beyond the reach of most individuals to obtain
and defend — that has normally been the domain of corporations with lawyers.
Even if a creator wants to open up a design, the cost of getting a patent is
restrictive and the legal issues around patents are daunting. Copyrights, on
the other hand, are free and applicable to any creative work as soon as it
is published, and can sometimes be applied to hardware design documents.
<http://lwn.net/Articles/407622/>

John Wilbanks <http://en.wikipedia.org/wiki/John_wilbanks> is the VP for
Science at Creative Commons <http://creativecommons.org/>, a non-profit
corporation whose stated goal <http://creativecommons.org/about/> is "making
it easier for people to share and build upon the work of others, consistent
with the rules of copyright." It accomplishes this by providing a set of
free licenses and legal tools to enable creators of hardware, software,
documents, and pretty much anything else copyrightable to "share, remix, use
commercially, or any combination thereof," using the concept of a *commons*,
a traditional public meeting ground in which resources are collectively
owned and/or shared. Creative Commons is addressing the challenges of open
hardware by creating a commons of patent tools to realize those same goals
for patents.

Wilbanks spoke at the OHS about legal issues when open source concepts are
applied to patents. He started by describing the problems with patent
protection and restrictive licenses on "not-open-source hardware" — the
traditional method for protecting hardware inventions:

- *incrementalism* — incremental innovation based on prior art as patents
expire and are renewed on new versions
- *artificial scarcity* — the goal of restrictive licenses in general: to
restrict access to something of value in order to make it appear more
valuable, such as Internet access at an expensive hotel
- *"thickets of patents"* — sets of restrictive patents built on
intertwining layers, making them very difficult and expensive to change or
challenge

At OHS, Wilbanks described an alternative method for both protection and
ensuring the ability to share by creating "zones of prenegotiated patent
rights" in the form of licenses based on language that is agreeable to both
the licensor and the licensee. "The whole issue of commons is coming to open
source hardware" and other fields in terms of a *patent tools commons*, a
set of licensing tools being developed by Creative Commons. CC has set up
two new patent tools<
http://wiki.creativecommons.org/Patent_Tools_Public_Discussion>to<http://wiki.creativecommons.org/Patent_Tools_Public_Discussion%3Eto>
help hardware creators who use patents to navigate through the maze in
order to open their designs in a safe way. The Creative Commons site
describes the tools as follows:

- a Research Non-Assertion
Pledge<http://wiki.creativecommons.org/Research_Non-Assertion_Pledge>,
to be used by patent owners who wish to promote basic research by committing
not to enforce patents against users engaged in basic non-profit research
- a Model Patent
License<http://wiki.creativecommons.org/Model_Patent_License>,
to be used by patent owners who wish to make a public offer to license their
patents on standard terms

"Untested licenses are like uncompiled code," Wilbanks says. "The idea is
to create zones of prenegotiated patent rights, first to begin cutting
through thickets [of patents], second to eliminate problems of scarcity, and
third to really start to get to the point where if you're trying to figure
out what you want to do, you're not exposed" to patent issues. The Model
Patent License in draft form provides sample language for a public license
offer that is "capable of being accepted by anyone on a non-discriminatory
basis and without additional negotiation," offering benefits to both
parties. These tools enable individuals to approach hardware patents
similarly to the ways corporations have traditionally done, but without the
high associated costs.

Wilbanks believes that open hardware can succeed "when you do legal
licensing around these systems [to] lower the transactional cost, increase
the transparency, and get the need to have a highly skilled lawyer
negotiating on your behalf out of the way." As with software, open hardware
licensing boils down to the creator's intent. Rather than depending on
safety "from the barrel of a license," Wilbanks says that to be adequately
protected, open hardware projects should follow some solid basic open-source
principles: start open (as opposed to starting proprietary and open-sourcing
later), publish early and often (to create prior art and encourage sharing,
respectively), and use prenegotiated patent rights to protect both ownership
and the right to share, rather than depending on licenses for protection.
Using licenses and prenegotiated rights lowers the cost of making hardware
open, which also lowers the barrier to entry. Those ideas will be refined
further as the open hardware movement gains traction.

"""
- Bryan
http://heybryan.org/
1 512 203 0507


Rob Myers <rob at robmyers.org> Oct 08 10:17PM +0100 ^


On 10/08/2010 09:38 PM, Bryan Bishop wrote:
> depending on safety "from the barrel of a license," Wilbanks says that
> to be adequately protected, open hardware projects should follow some
> solid basic open-source principles:

Patent licensing should be the same as copyright licensing: use
one-size-fits-all licenses to neutralise the threat and protect people's
freedom rather than to add whatever restrictions and fees you want to
break up the commons.

- Rob.



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