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Open-source Hardware License - creative commons-like license for stuff Answered

Here on Instructables we offer authors the ability to wrap their Instructable with a variety of licenses, most notably the Creative Common Licenses (check here for your default license). These licenses only apply to the Instructable itself as a work that can be copyrighted; they do not apply to the idea presented in the Instructable. Under current law, the only way to protect the idea presented in the Instructable is through a patent. While we've toyed with the idea of a "publish this Instructable and apply for a provisional patent" button, patents are expensive and time-consuming. I have a few myself (through MIT and Squid Labs), and can say with some authority that getting a patent through the application process, defending it, and possibly licensing it is a game for corporations and is out of reach for most individuals.

Roey asked me about this issue in regards to his Universal Nut Sheller (from here):

"So we've figured out a way to make cheap molds anywhere in the world for the Universal Nut Sheller, https://www.instructables.com/id/EPNPAI9025EVYDUURQ/ our of concrete I'll be posting things as I go along. By the by, I was wondering if you guys had fully explored the legal issues dealing with these creative commons licences and technology. According to everything I'm aware of Creative Commons only applies to works that can be copyrighted. According to How Stuff Works: http://www.howstuffworks.com/question492.htm (admittedly not the best source) Copyrights are:

  • Literary works
  • Pictorial, graphic, and sculptural works
  • Musical works
  • Sound recordings
  • Dramatic works
  • Pantomimes and choreographic works
  • Motion pictures and other audio-visual works
  • Architectural works

and patents are: "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof"

I spoke to Jamie Love ( http://www.cptech.org/jamie/ ) about this and he told me that we need to get in contact with the folks that run Science Commons http://sciencecommons.org/ . Apparently their executive Director John Wilbanks also works for MIT. I've been trying but so far no luck. I'd be interested in hearing what you know about this area. I would love be wrong, it would be great if licencing our technology is as easy as picking a CC Licence, I'm just not sure that it is."

I forwarded the question along to Eric Steuer, the Creative Director of the Creative Commons, who said:
"A CC license can apply to the drawings and possibly the 3D shapes to the extent that the copyrightable elements are separable from the functional part, but there is no copyright in utilitarian designs - that stuff is better protected as a design patent (if it meets the threshold) and then he could apply a CC-like license to it...although given you only have patent rights by applying (as opposed to copyright that applies automatically) he could just not patent it and then everyone can use it..."

Recently, people over at tapr.org released drafts of open-source hardware licenses. I got the following message from Jonathan Kuniholm at Duke asking for comments on the drafts:
"I have spoken with each of you regarding our interest in the infrastructure for the sharing of hardware designs. An organization with its roots in amateur radio and open source software has released a draft of two open hardware licenses ( http://www.tapr.org/OHL ). I believe that the inspiration is primarily electronic hardware, but the concept addresses issues we have encountered in our work with The Open Prosthetics Project and its parent organization, the newly incorporated Shared Design Alliance.

We have been interested in the ways that we might protect those who choose to share designs for public good from the possibility of having those designs patented out from under them or otherwise removed from the public domain, as well as helping them avoid the cost and time delays of patent protection for efforts from which they are not trying to profit. These draft licenses also address liability issues, which are another can of worms. I would be interested to hear thoughts from folks more knowledgeable than I about the effectiveness and potential pitfalls of such measures, given the difference between the issues surrounding physical designs and patents (for which there is currently no open license option outside of patent-related measures), and those surrounding items traditionally protected by copyright, which can currently be released under Creative Commons or GNU licenses ( http://creativecommons.org/licenses/ , http://www.gnu.org/copyleft/gpl.html , http://www.fsf.org/ ).

The TAPR folks have invited comment on their draft, and I think that this is as good an effort as I've seen so far. If you have interest or expertise in this area, please submit comments through the TAPR site, and please forward this to anyone else you know who may be interested."

This is obviously an issue at the very core of open-source hardware and Instructables, so I encourage you to take a look and tell us what you think.



4 years ago

Apologies in advance in case I upset someone for digging up a seven year old topic. But it is very relevant for me in a current day scenario. I'm also a noob in this area so kindly excuse my lack of knowledge. I'm mainly worried about the part where someone else can patent what I develop and put on the net; however I have no problem if someone else chooses to manufacture my design and sell it as long as they acknowledge its origins.

1) Has any concrete progress taken place over the past seven years with regard to open source licensing of designs?

2) I read about something called 'defensive publication'. How relevant would that be in this context?



12 years ago

A key difference between the patent system and the copyright system is the economics of blocking infringement. Patents are infringed all the time for purposes which don't make money (can the lawyers here comment on whether this is a legal right or merely a pragmatic one?). One of the stated purposes of the Patent system is to benefit society by allowing disclosure of inventions, while still allowing the inventor to profit from exclusivity.

Consider Linux - it is estimated to infringe on over a hundred US patents. This had no effect on its growth amonth open source hobbyists and most small companies, because in making no money from it they will not (can't?) be sued for infringement. The problem is for major corporations selling or using linux-based products - the ones making or saving enough money to be interesting legal targets. With the largest companies in the world now using Linux extensively we're seeing some unique IP strategies:

Open Innovation Network (wikipedia)
Linux backers form patent sharing firm
Several firms pledge patents for open source use

These strategies are spearheaded by the companies that have most recognized and leveraged open source in their business - they have realized Open source software is so important to their business that it is worth their while to protect it even if that means sharing their patents - and they have formed a novel IP sharing structure for the purpose of advancing Open source software. (also see http://squid-labs.com/blog/?p=17 ).

In thinking about Open source hardware issues, I always consider "how is it different from software". Because hardware has atoms, there is always some money involved somewhere even for low volumes. I don't think you'd be able to achieve a hardware project on the scale of Linux without much more of the initial user base having problems with infringement. Perhaps a similar large group of major hardware patent holders could pledge their patents for open source?


12 years ago

Let me just jump right in this discussion, and work my way out. ;>) In most other countries, one cannot disclose his/her invention to the public before applying for a patent on it. In the US, as many know, one has the option of publicizing his/her invention to the whole world, if s/he wants. S/he then has up to 12 months to apply for a patent that covers what has been disclosed, if s/he wants to eventually obtain a US patent for it. That can either be a provisional patent application or a utility patent application (assuming the invention serves a functional purpose). Anything on the internet would definitely be considered a publication. Technically, posting something on the internet rules out the possibility that anyone filing afterward, in most other countries, can fairly acquire a utility patent. Yet, assuming that the one who posts the idea is the inventor, s/he would have a year to apply for a US utility patent or its provisional patent. Now, US design patents are a little different. In essence, they can be thought of as three-dimensional trademarks. They do not offer very much, if any protection for functional use. (There are rare situations when they actually can.) The time period for filing a design patent in the states is not a year, but 6 months. Surprisingly, from what I have seen on this forum, a design patent would actually be appropriate for some of the instructables here. It would be important to remember that, in order for any originator to maintain a claim on US design patent rights, s/he would have to have publicized sufficient detail on its design (its appearance). This means that more than one view is often required. Under no circumstances would any licenses, explicitly agreed-to or otherwise, provide a legal substitute for the rights supplied by a patent. In a sense, these open licenses (including their implied terms) represent nothing more than a "gentleman's agreement" with which to share work in good faith. This is because even a full utility patent is normally used to only recover monetary losses that result directly from infringement. As far as I know, an open license protects nothing that would be recoverable. That is not to say that a licensee of say a patent would not be bound to the terms of a particular agreement even after that patent has expired, according to the terms of the license itself. Nor, does this mean that an open license cannot be used in support against infringers of a patent resulting from some derivative of the shared work which, in some way, had not been stipulated to, or implied by the open license. (Whew!) But, for most purposes here, it might be best to look at these open license creations as art. If they are good enough, people will do their best to preserve them. If not, then they will be improved upon. I believe that is the whole idea. Again, in a legal sense, it would almost always be unreasonable to revoke permissions as generous as those granted by an open license, because in fairness to anyone who undertakes a project under their terms, s/he could not be realistically expected to "throw in the towel" once s/he has made any sacrifices or significant expenditures. After all, that much contribution would seem to be the objective, to begin with. The bottom line is that there is a great deal of work posted at this site that appears to be patentable material. There seems to be a persistent fear that contributors stand to lose their IP rights if they publicize their ideas so widely. Interestingly enough, this is probably one of the most effective ways to secure rights in the US, provided that certain constraints are strictly observed. This is specifically because the US patent system is actually set up pretty well to determine the true originator of an idea. The odds are heavily stacked against anyone who would try to assume ownership of an invention that they did not originate. What I like about this site is that it already serves as a substantial public record of legitimate disclosures. I'm sure many other members are aware of that. Cheers!


Reply 12 years ago

But, for most purposes here, it might be best to look at these open license creations as art. If they are good enough, people will do their best to preserve them. If not, then they will be improved upon. I believe that is the whole idea.


Again, in a legal sense, it would almost always be unreasonable to revoke permissions as generous as those granted by an open license, because in fairness to anyone who undertakes a project under their terms, s/he could not be realistically expected to "throw in the towel" once s/he has made any sacrifices or significant expenditures. After all, that much contribution would seem to be the objective, to begin with.

That is the idea for you and me any many other members within the community (DIY et. al as a whole). I think the concern is about some company poking around, picking up something, paying to have it protected by law, and then mass producing it for profit (such as the universal nut sheller). Or even worse, a rogue member going into business for the purpose of patenting and mass producing these works -- just check out the LED throwie comments, several companies have picked up the idea and sell them as pre-made kits. Flattering yes, but it's good that GRL seems to not be bothered by it...

I agree that there's quite a bit of patentable material here (even 1% of 3000 projects is damn good results). But many of us don't have the right combination of time, money and knowledge to go through the patent process within the publication time constraints. Which is where the concern kicks in: "Should I, or should I not publish this."


Reply 12 years ago

Yeah, that can be a tough call.

One of the nice things about a community such as this is, as far as anyone need be concerned, every single member on this forum can vouch for things like date-of-conception and reduction-to-practice.

Another good thing is that, more often than not, someone will provide a comment referencing prior art (even patents). Searching for prior art is the first hurdle. And, you have people here (for various reasons) jumping at the chance to provide tons of help to get you beyond that. It's pretty cool, if you think about it.

Also, the instructables, themselves, are geared to be full-disclosures most of the time. They tell you exactly how to make something, or perform a particular process. Essentially, that's all a patent is. Some members would be surprised to learn that the work they put into an instructable amounts to maybe 80 percent of the effort required to submit a provisional patent application with the United States.

This website is actually pretty amazing to me. I recognized that early on, and I'm still discovering little bits of cool programming and inherent benefits tied to it.

If anyone here would like some assistance or feedback on intellectual property (patents), I'd be happy to give it out generously. Just add to this discussion. Or private-message me, if you like.


Reply 12 years ago

Exactly! Hence the quite serious idea of "publish and submit provisional." Maybe we could get a deal with the USPTO to do a couple thousand provisionals per year for super low-cost. Then we'd have to call it "Patentables." Crap! I better go register that one!


Reply 12 years ago

Ha!!! Okay, you got me to LOL.

On the serious side, I don't think they'd mind. They'd be getting a hundred dollars every time someone pushed a button (and they wouldn't have to examine the application unless the full one is filed).

Yeah, you better go register it, because Patentables? It's the next logical step.

BTW, I believe you mean PatentablesTM ;>)


12 years ago

In reference to the comment about publishing itself being enough to protect the idea from patent by someone else: yes, it SHOULD be enough. The act of publishing is a documentation of prior art and should keep the USPTO from granting a patent to someone else for the same idea.

However, we are all aware of recent very expensive fights involving patents that many believe should never have been granted. The goal for those of us in the shared design community is to avoid getting cease and desist letters or being forced to defend against lawsuits or threats forcing the removal of designs from public display.

The tactic we have taken thus far on openprosthetics.org is to regularly archive the site with http://ip.com/, creating a verifiable record of our publc disclosure (I wonder if it would be practical for instructables to do something like this for their entire site?). Other tactics we have considered but not pursued include the possibility of regular informational filings with the USPTO in the form of patent applications that extensively document prior art in order to get the documentation to become not only verifiable documentation of disclosure but part of the patent record that is regularly searched in support of decisions regarding the granting of patents.

Because at openprosthetics we are actually interested in an increased diversity of commercially available prosthetic options, we are specifically avoiding and are not interested in non-commercial or other restrictive donations to the public domain. Others are surely interested in these options.

In short, creators of physical designs lack both the automatic protection offered by a copyright, and the ability to delegate and tailor the donation of those automatic rights associated with the various flavors of licenses available.

As far as the life of licenses and patents are concerned, trebuchet has a valid concern. Public disclosure can create prior art to prevent the issuing of a patent to another, a license could be offered to the public for a patented idea, but I believe that it may be impossible to publicly disclose an idea and restrict its use without the filing of a patent. A restricted license for a granted patent would obviously become redundant as the patent expired and reverted to public domain.

I, too, by the way, am speaking here as an interested engineer with limited legal knowledge.

Thanks for the thoughts and interest in the topic.

Jon Kuniholm



12 years ago

Doesn't PUBLISHING a design protect you from having it "patented out from under them" ? It's part of cisco's Patent Review Process that an idea submitted for possible patenting can be tagged "publish this" instead. Surely posting an instructable counts as publishing ? (maybe not; internet publishing is a bit ambiguous. Perhaps Instructables.com's role is to make SURE posted projects are consider published? Somehow?)

(but my patent experience is confined to the "pay lawyers lots to do it for you" methodology of the big company), aisde from the lectures they give us non-believer engineers about why we should patent things...

Eric Steuer mentions "Design Patents"; my understanding is that those are different (also cheaper and easier to obtain) than utility ("invention") patents? Wikipedia says "In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers (see Fig. 1) and computer icons are examples of what can be protected with design patents."


12 years ago

My concern is... what are the applicable laws? I just read tapr's OHL and applicable law is a common theme among CC and GNU. But to be honest, I have no clue what these laws are and how they apply globally. What's to stop someone from picking up something under a OHL out of my country where applicable law does not exist?

You (Eric) probably remember our discussions a few months ago about intellectual property - likely another concern for makers et. al. I know that in the past 10 years or so that steps have been taken to unify global laws with respect to IP (TRIPs by the WTO). My question is (to anyone that knows), are these the aforementioned applicable laws?

Another concen. How long would a OHL last? A patent has a shelf life. After a certain period of time it becomes public for anyone to use. While to the maker that seems terrible (I somewhat agree). I see it, from an economics point of view, necessary. Just curious of how that will work (or how it is working).

Thanks for bringing this up :) I too will attest to how much a pain in the butt a patent is (enough that I couldn't go foreword). Also remember that a patent is only good if you are willing to (put the money down) defend it. No one else will defend it for you.