Author: gabriella

Some of the basics of Open Source Hardware, the landscape, history and implications are covered in the attached article, written as a collaboration between Alicia and myself.

PDF attached , text below.

(The the full journal touched on the landscape of OSHW in various sectors of tech innovation and how a shifting paradigm in entrepreneurship might affect corporations, innovators, and policy makers). Email me (gabriella.levine@gmail.com) if you’d like to read a copy.

And here are the slides from the presentation.

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“Broadening the Open Source Landscapes: Insights from OSHWA”

A. What is Open Source Hardware? Open Source Hardware is an alternative to the patent IP structure. As the communally written and accepted definition states, “Open source hardware is hardware whose design is made publicly available so that anyone can study, modify, distribute, make, and sell the design or the hardware based on that design. The hardware’s source, ie. the design from which it is made, is available in the best format for making modifications to it. The formats can include CAD designs, electronic schematics, source code, technical drawings, and photo / video documentation. Ideally, open source hardware uses readily-available components and materials, standard processes, open infrastructure, unrestricted content, and open-source design tools to maximize the ability of individuals to make and use hardware. Open source hardware gives people the freedom to control their technology while sharing knowledge and encouraging commerce through the open exchange of designs.” See this video for further explanation.

More fields in industry, design and technology are adopting the Open Hardware definition as part of their missions and values, broadening the landscape of source files available for use. Open-source hardware has been applied to electronics, fashion, furniture, musical instruments, bio-engineering and much more. A few specific examples follow, though there are many more open source projects and too many to list. See here for a growing list of Open Hardware projects. Arduino, a microcontroller and (Integrated Developer Environment) IDE software platform developed for hobbyists to make electronic prototypes, has expanded the world of hardware development from electrical engineers to artists, hobbyists, and even youth. Open Hardware projects range from industrial machines [open source ecology], 3d printers [RepRap], environmental disaster relief efforts [Protei, Open Relief], space programs [DIY Space Exploration, Mach30], and underwater robotics [openROV].

The Open Source Hardware Association, referred to as OSHWA, is a pending 501(c)3 non-profit to educate people about open-source hardware, collect data from the community, and voice community standards. OSHWA aims to represent the Open Hardware movement, globally.

B. INNOVATING BASED ON MODELS: Technology has always been innovated based on other people’s successes, from the discovery that the earth was round, to the invention of the telephone, steam engine, or airplane. Although patent laws were originally designed to protect inventors’ ideas and benefit the public good, today patents constrain further innovation. Open Source is founded upon the belief that the more designs and processes can be open and shared, the quicker that innovation can happen. Open source hardware generally benefits the consumer because it enables the consumer to test, alter, iterate upon the product, thereby allowing for competition within the free market.

There are many examples of successful businesses openly sharing software, such as Mozilla and Linux, but the rise of the Open Hardware trend is beginning. This growing trend is founded in the belief that sharing ideas, designs, and methodologies can bring technological innovation and manufacturing mainstream on local and global scales, making it easier to engineer new solutions to complex problems. Open Hardware projects that facilitate free sharing of documentation, source code, and CAD designs, are an approach to proliferate innovation.

C. HOW TO CREATE OPEN SOURCE HARDWARE: Open-source hardware depends on proliferating technology through sharing the documentation and source files needed to build and modify your hardware. As the open-source hardware definition explains, one must document the complete and preferable versions of the files for a design, rather than an intermediate or obfuscated version. For mechanical components and physical designs, it is the original CAD files. For circuit boards, it is the original schematic and board layout files.  The Open Hardware community has generated a list of Best Practices pertaining to documenting and sharing work related to a piece of hardware so that others can use and modify the work.

Unfortunately, a technology that attempts to be Open will often incorporate original design files for hardware that are in proprietary formats from expensive software tools because the open source equivalent software does not exist. In this case, it’s helpful and encouraged to offer versions of the design in alternative or intermediate formats that can be viewed or edited with common or free programs. For example, PDFs of circuit schematics, Gerbers for circuit board layouts, and IGES or STL files for mechanical objects. These allow people without access to expensive or proprietary software to make use of your design as best possible. However, releasing the original files as well defines the core of open-source hardware practice.

Many individuals and companies that produce open-source hardware publish their design files on their website when the product goes on sale (for example, Arduino). Others store their files in online version control systems (e.g. GitHub or Google Code), so that they are public throughout the design and development process. This is a choice that businesses or individuals make. Further, there are websites specifically designed for sharing hardware designs, like Thingiverse and Instructables.

If the inventor adheres to the open source hardware definition, then he / she may use the open hardware logo to denote to the community that their project is open and the source files are publicly available.

D. WHO PRODUCES OPEN SOURCE HARDWARE AND WHY COLLABORATION IS VITAL: The open source hardware community is made up of a diverse set of people and backgrounds. People from the open source hardware community categorize themselves as: DIY-ers, engineers, makers, hackers, artists, and activists, and often a combination of several of the previously listed items. Communities of these people participate in the DIY (Do-It-Yourself) movement, the rise of makerspaces/hackerspaces (places where like-minded people get together and invent things usually based in science, tech, and art), the Maker movement, and the open source hardware movement. Similar to the sharing ethos that occurs in makerspaces and the maker and DIY culture, the Open Source Hardware movement began as a way for people to share information and documentation for fabricating hardware. Through the proliferation of information, building up other’s code and designs, several companies and open source hardware projects have branched from other open source hardware projects, thus being the result of knowledge and skillshare that happens in collaborative work facilities.

In 2012 a survey was conducted by OSHWA to collect data about the community. The full results can be found on our website. Another survey is currently ongoing for 2013. The 2012 survey had 2000 participants, although this is not representative of all the people in the open source hardware community. The 2012 survey found that 44% of the participants were using open source hardware for their jobs/careers. Only 14% of participants reported that none of their income comes from building open source hardware, while 86% of participants make some or all of their income from open source hardware. 52% reported living in the USA, though this number could be high as the survey was in English, and US-centric despite our best efforts to outreach beyond USA.

E. WHY GO OPEN? Patents were created to incentivize inventors and spur innovation in exchange for 20 years of exclusive rights in the form of a monopoly. The patentee has to disclose how their innovation was created to the public. In today’s patent system, money made from patents is going to lawyers rather than the inventor, and a twenty year monopoly is not a realistic timeframe for the pace of technology innovation in the digital era. The barriers and frustrations that the patent system has created is veering inventors to adopt a new alternative to patents: open source hardware. It is vastly easier to innovate on a technology which is open and the source files are publicly available, at no cost. Open source hardware creates products not driven by building monopolies but driven by capitalistic pursuits and technological innovation in an open environment. This type of sharing information leads to powerful opportunities for companies and individuals to learn from each other.

To further illustrate these ideals, Nathan Seidle, former board member of OSHWA and open hardware business owner of SparkFun Electronics, was invited to testify to the House Subcommittee on the IP Reform happening in congress6. He uses open source hardware rather than patents because his products are innovated within weeks, rather than years. His products also get copied and reproduced by consumers and users. Patented works also get copied, but Seidle reports that is more lucrative to out-innovate a copied product rather than litigate.

Rather than esteeming the value of intellectual property, open source hardware companies value a large community using, sharing and making daughter products or derivative products, working towards a common goal of bettering the world of electronics and prototyping tools.

 Individuals and companies value open source hardware to make it more accessible and attainable by a broader audience. Additionally, open source hardware piggybacks off the DIY movement by valuing giving others the design files to “build it themselves and fix it when it is broken”.  A third reason people find it beneficial to open source hardware aligns with the DIY &  maker ethics, valuing the ability to control, alter and personalize the items which one owns. As products swing back to personalization from mass market goods, open source hardware makes personalization of goods possible. Not only does personalization benefit the consumer, but the fact that companies can build off of, curate, and improve other open source hardware products also means the consumer is getting a better product. Inventors are creating the marketplace and alternate IP system that they want to be part of.

F. Future of Open Source Hardware: OSHWA hosts the annual Open Hardware Summit. Each year this event continues to grow by a few hundred people, and the people attending and sponsoring come from bigger and bigger businesses. Open source hardware tools are now making it to mainstream market, such as an open source laser cutter (such as LaserSaur) and an open source jigsaw14. This is a new advancement in the open source hardware landscape. Along with these new advancements and growth within our community, we recognize that people want more options for their hardware, even in the niche of open source hardware. OSHWA is looking to develop a laundry label type of labeling system that would graphically represent which parts of a project were open source (for example, the mechanicals, the electronics, the process, etc.), which parts can be easily fixed if broken, which parts can be recycled, which parts have instructions for troubleshooting, etc. As Open Hardware increases the options that inventors have when releasing their technologies, we hope to grow the number innovations using open source hardware as well as continue to relay the benefits of open source hardware to the general public.

FURTHER READING:

1. https://www.oshwa.org/definition/

2. the history of oshw organizations and definitions

3. https://www.oshwa.org/sharing-best-practices/

5. Adafruit The many layers of open source hardware: definitions, licenses, challenges, and debates http://www.adafruit.com/blog/2009/03/28/open-source-hardware-overview-slides/

6.Testimony of Nathan Seidle, Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet U.S. House of Representatives: http://judiciary.house.gov/hearings/113th/08012013/080113%20Testimony%20-%20Seidle.pdf

This blog post by Gabriella Levine prepared for OSHWA.org is licensed under a Creative Commons Attribution 4.0 International License.

So feel free to use any of the following info for describing or writing on Open Source Hardware. 

This post is organized according to the following sections:

1. OVERVIEW
   a. Why should OSHW care about IP?
     i.Making Openness Sticky
     ii.To be smart enough about patents that they don’t cause trouble for you
2. What does copyright protect and what do patents protect?
   a. COPYRIGHT:
   b. PATENTS:
3. Making Openness Sticky:
   a. Problems with Open Software Licenses in a Hardware Context
   b. We’re working on it : some options and resources
4. PRIOR ART AND CHALLENGING A PATENT
   a. PRIOR ART IS YOUR FRIEND
   b. CHALLENGING PATENTS

1. OVERVIEW
This blog post provides information from the legal discussions surrounding open source hardware in an open hardware legal meetup event hosted at NYU by Jason Schultz, founder of Defensive Patent License, November 11, 2013. OSHWA was very grateful to be part of the event. Legal professionals at the event included: Michael Weinberg, Julie Samuels (mastermind of this get together), Jason Schultz (other mastermind of this get together), and others who wish to remain anonymous.

This was the first of hopefully more discussions for the OSHWA community to better comprehend some of the complications around IP when it comes to Open Hardware technologies & companies. The discussion of this event came from some frequently asked questions to OSHWA, mainly:

• How do I protect my open source hardware from someone else patenting it?
• What options do I have for making my hardware open source and how enforceable are they?
• Will a creative commons / copyright / copyleft license on my documents protect my hardware from being patented?

A. Why should OSHW care about IP?
The main reasons for the Open Hardware community’s efforts to get a better understanding about IP is in attempt to deal with the following :

i. Making Openness Sticky
a. How to keep the technology open
b. Create the option to have enforceable copy-left / share-alike / viral licenses
c. Create a framework that grants the option to enforce that openness remain sticky: in other words, enforce that anyone who builds upon an Open Hardware technology, builds it to remain open as well (or at least, does not make it closed).

ii. To be smart enough about patents that they don’t cause trouble for you
a. Create Protection
b. Proliferate Open Source Hardware Technologies but avoid having open source hardware patented by another party.

To begin, we’ll give an overview of the current IP systems (US based), then launch into the options for open source hardware and finally walk you through challenging a patent (let’s hope that never happens).

2. What does copyright protect and what do patents protect?
Patents versus Copyrights: Distinguishing between a patent and a copyright is important when evaluating the IP framework for an open source technology.  There are various IP frameworks and licenses including creative commons, GPL, copyleft, and it is possible to extend or modify the rules that each license / framework instantiates to meet the needs of a particular technology, but to do so requires understanding the rules already in place with the existing frameworks. In the context of open source software, these frameworks have relied on copyright and the inherent copyrightability of software. While these frameworks inform OSHW, they may not apply directly. As detailed below, copyright does not protect hardware as completely as it does software. This means that the OSHW community cannot simply port software- (and copyright-) focused licenses into the hardware world.

A. COPYRIGHT:
Copyright covers things you can draw out or write out, specifically documentation about the hardware or software, ie. code, diagrams, written documents, schematics, etc. Copyright does not protect ideas or manifestation of the hardware in design files, which is to say that copying of devices itself is not prohibited by copyright. What is protected by copyright are the plans. If you make an exact copy the plans [ie by xeroxing] then you have infringed on the copyright. However, if you “copy” the plans by extracting information from the plans in order to build a device or a “thing”, you have not infringed.

B. PATENTS:
Patents protect an idea in process or an invention. Any item or thing is potentially patentable as long as the concept is not too abstract. The system in most of the world is known as “First to file”, which means that it is important to document prior art before the patent filing date (regardless of how that filing date is determined).

A patent can provide IP protection even in some cases where copyright doesn’t apply, so that without a patent anyone can make a physical manifestation of a device from documentation, even if it the documentation is copyrighted.

3. Making Openness Sticky:

A.Problems with Open Software Licenses in a Hardware Context
The current open hardware licenses are based on the quid pro quo of copyright, but this in an imperfect solution. Unlike software, most hardware devices will not be protected by copyright. This means that copying the hardware without permission will not violate copyright, making a copyright-based license irrelevant. In order to be enforceable, hardware licenses need a stronger legal “hook”, or reason to create permissible copies or build upon the device. The big question to answer is where this hook will come from as people in the oshw community do not depend on patents.

B.We’re working on it : some options and resources
1. The open hardware definition: by way of using the oshw logo, entitles you to agreeing with the open hardware definition, which is a communal standard, or social contract. This is not a contract you need to sign, but is in place by the oshw community which would be considered if you ever had to go to court for prior art, infringement, etc.

2. An Open hardware license, such as TAPR, CERN OHL, or Solderpad licenses: These are licenses adapted from open software licenses to apply to hardware. We are cautioned to consider what these licenses are hooked on, which in some cases may be copyright (and the open equivalents to copyright).

3. The OHANDA trademark: This is a trademark to use if you agree to the 4 freedoms listed on OHANDA’s website. The oshw definition used these 4 freedoms when writing the definition, but flushed out further considerations for what open source hardware is defined by.

4. A Defensive Patent License : A DFL is a group of patents that is a pool of shared resources – you agree not to use your patent to sue unless you get sued first. The license is perpetual, irrevocable and royalty-free, as long as you are part of the IP pool.

5. Patent a standard: The opportunity may arise in oshw to be the first to discover a standard (think USB) and could patent the standard, then grant it to the public openly (or with restriction). However, standards are set so you don’t fork all over the place, and this is not really how open source works.

6. Crowdsource the top 10 prior art innovations to send those to the USPTO: If you take the time to find and craft the prior art argument for the USPTO examiner, the examiner will have more incentive to do the right thing. There is risk that the patent will be granted anyway and invalidate the prior art completely. Crowdsourcing (some resources below) may be a great way to do this.

Further available resources are: Article One, Ask Patent, Peer to Patent

4. Prior art and challenging a patent

A. Prior art is your friend
To determine if a patent is original, the patent office searches for prior art.  If prior art is not found, then the patent goes though. Prior art is constituted by what is public knowledge, so for example if the invention has only been stated under NDA, it is not prior art, because it was not public knowledge. Something is “in the public domain” if you can google it and find it. If you file a provisional patent as a placeholder and do not finish it, it is considered abandoned and does not count as prior art. You would have to publicly publish the invention or finish the patent for it to be considered prior art.

B. Challenging Patents
OSHWA frequently gets asked “what if someone patents my oshw design”. This situation has not happened that we know of. But, here is an idea of how the system works for challenging a patent.

First, getting a patent is easier than challenging a patent. Patent examiners have few resources, have little time, and get rewarded for awarding patents.

The first 18 months, a patent is pending, and in this stage the USPTO does not release any information about it. At 18 months the USPTO will publish pending applications. At this time, anyone can submit “prior art” to the USPTO.

 You can also send the patent filer’s patent attorney your prior art for the cost of a stamp as long as your prior art is truly identical to the patent. Patent attorneys have a legal obligation to turn that into the USPTO. But if your prior art is not 100% on the mark, the lawyer can also debunk your prior art this way.

After the time period has passed for public viewing of a pending application, the patent is awarded or denied. If a patent gets awarded, you will need to petition the USPTO to review any prior art that is in the public domain that the patent examiner did not know about : this costs $7K-17K in filing fees and attorney time. The process of petitioning the USPTO after a patent is awarded is expensive (think millions of dollars) even if you have prior art. At this point you’re in litigation, so call the EFF’s branch to Eliminate Stupid Patents.

At any time in this process, you can publicly shame the patent owner. On the Internet, this can sometimes prove to be a great defense.

As a disclaimer, please note that none of the above is to be considered legal advice, but informed education about the current IP landscape and how to implement open source hardware frameworks, including some options that exist. The information here is a result of the opinions in the room who consulted with OSHWA, all US based lawyers, your lawyer may have differing opinions. An extra thank you to Michael Weinberg at Public Knowledge who helped OSHWA write this blog post.