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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.

This FAQ and others are available on the OSHWA FAQ page: https://www.oshwa.org/faq/

What’s a USB vendor ID (VID) and product ID (PID) and what should I do about them?

USB vendor IDs (VID) and product IDs (PID) are 16-bit numbers used to identify USB devices to a computer or other host. Each vendor ID is assigned by the USB Implementers Forum to a specific company, which in turn assign a PID to individual products. The VID and PID are then embedded in the product and communicated to the computer when the device is plugged in, along with text strings describing the vendor and product and additional descriptors about the communication protocols supported by the device.

Because a USB VID is specific to a particular organization, derivatives shouldn’t use the VID and PID of the original hardware. This can be problematic for small open-source hardware projects because it costs $5000 to get your own vendor ID (and more for permission to use the USB logo). Because this can be a lot of money for a small project, people have taken various approaches to avoiding the need to purchase a vendor ID. If you’re using an off-the-shelf chip for USB communication, you may be able to use the VID/PID of that chip (e.g. with FTDI chips). OpenMoko has opened up their VID for use by free and open-source software and hardware communities. In some cases, a device may work correctly regardless of the VID/PID it uses, since its actual capabilities are specified by other descriptors. In general, though, the current USB VID and PID scheme doesn’t work particularly well with open-source hardware and its encouragement of derivative works. (For example, here’s one attempt to get a VID for open-source projects.) Ian Lesnet gave a talk on the USB VID/PID situation(slides) at the 2012 Open Hardware Summit.

OSHWA is interested in improving this situation by educating the USB IF about the needs of the open-source hardware community and to explain the USB VID/PID situation to the open-source hardware community. If you’re interested in helping out with this effort, please get in touch.

This FAQ and others are available on the OSHWA FAQ page: https://www.oshwa.org/faq/

The Best Practices, written by the community via the mailing list and a Google doc, have been posted on OSHWA’s website for while now. But we’ve been seeing an increase in questions about specifics of the oshw definition as of late, usually dealing with how to best implement the definition. So we wanted to raise some awareness that the Best Practices are a guide to following the oshw definition.

The Best Practices include:

• How to publish Original Design Files
• How to publish Auxiliary Design Files
• Advice for BOMs, Software, Firmware, Photos, and Instruction
• Hosting your Design Files, and Licensing them
• What to do when Distributing Your OSHW
• How to reuse and remix other’s OSHW

This document has been hashed out over the course of the past 6 months thanks to the work of participants on the mailing list lead by David A. Mellis and Nathan Seidle. If you feel we’re missing something, wish to discuss, or have a translation for us to post, please write to the mailing list.

For Ada Lovelace Day we would like to highlight all the women who work for OSHWA and represent OSHWA on our board! And we thank the allies who work with us in Open Source Hardware.

The Exceptional Women on Our Team:

Alicia Gibb – Executive Director

Alicia is the founder of the Open Source Hardware Association. Previous to becoming an advocate and an entrepreneur, Alicia was a researcher and prototyper at Bug Labs where she ran the academic research program and the Test Kitchen, an open R&D Lab. She is a member of NYCResistor, co-founder of the Open Hardware Summit, and a member of the advisory board for Linux Journal and The Ada Initiative. She holds a degree in art education, a M.S. in Art History and a M.L.I.S. in Information Science from Pratt Institute.

Catarina Mota – Research Chair

Catarina is co-founder of Open Materials (do-it-yourself smart materials), Everywhere Tech (open source technology transfer), and AltLab (Lisbon’s hackerspace). She has taught numerous hands-on workshops on hi-tech materials and simple circuitry with the goal of encouraging people with little to no science background to take a proactive interest in science, technology and knowledge-sharing. Catarina is wrapping up her PhD dissertation on the social impact of open and collaborative practices for the development of physical goods and technologies. She is currently a visiting scholar at ITP-NYU, Research Chair at the Open Source Hardware Association, TED Fellow, and member of NYC Resistor.

Nancy Ouyang – Treasurer

Nancy graduated from MIT with a BS in Mechanical Engineering in June 2013 and is now working on her own startup,NarwhalEDU, with her friends Hanna and Cappie. She was formerly president of MITERS, MIT’s hackerspace, and in her spare time worked on things such as Hexacon, the world’s first hexapod conference, and project dx/dt, a documentary film. She likes hexapods, nyancake, narwhals, and naps.

Kellbot – IT Guru 

Kelly ”Kellbot” Maguire is a web developer, open source hardware enthusiast, and dedicated knitter. She is an advocate for hands-on learning through hardware hacking. When she is not trying to cajole her knitting machines into working, she can be found watching professional Starcraft matches (yes, that is a thing) and building treehouses in Minecraft.

Aileen Park – Virtual Office Assistant

Aileen is an undergraduate student majoring in Computing and the Arts at The University of California, San Diego. Her main interest in the program revolves around electronic arts, which she was introduced to after taking the appropriately titled Electronic Technologies for Art series. In her free time, she likes to sleep.

The Exceptional Women on  Our Board:

Gabriella Levine, President

Star Simpson

Danese Cooper

Danese has a long history of advocacy for open-source, earning her the nickname “Open Source Diva”. She is a Board Member at Drupal Association, an Open Source Strategist (consulting) at Bill & Melinda Gates Foundation, an Emeritus Board Member / Observer at Open Source Initiative (OSI), and a Member at The Apache Software Foundation. Previously, she was Chief Technical Officer of the Wikimedia Foundation and, for six years, an open source advocate at Sun Microsystems.

Addie Wagenknecht, Co-Chair, Open Hardware Summit (2013-2014)

Addie Wagenknecht completed a Masters at New York University as a Wasserman Scholar and shortly after held fellowships at Eyebeam Atelier, CultureLab UK and more recently at HyperWerk Institute for Post-Industrial Design as well as Carnegie Mellon University STUDIO for Creative Inquiry. She is currently a Mozilla Open(art) Fellow, an artist at Free Art and Technology Lab a.k.a. F.A.T. Lab as well as co-founder of NORTD labs who created the open source lasercutter Lasersaur. Addie is a professor in robotics and open source computation at the institut für experimentelle architektur hochbau at the University of Innsbruck, Austria. Wagenknecht’s research, collaborations and projects are documented in a number of academic papers, books and magazines such as the Economist, Forbes, Popular Mechanics, MIT Technology Review, Gizmodo, Slashdot, Engadget, Heise, ARTnews and Der Standard.

Honorary Board Observer:

Wendy Seltzer

Wendy is a Fellow with Yale Law School’s Information Society Project, previously a fellow with Princeton University’s Center for Information Technology Policy; the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado; and with the Berkman Center for Internet & Society at Harvard Law School. She was a Visiting Fellow with the Oxford Internet Institute, teaching a joint course with the Said Business School, Media Strategies for a Networked World. She has previously taught at American University’s Washington College of Law, Brooklyn Law School, and Northeastern University School of Law, and served as staff attorney with the Electronic Frontier Foundation. Before joining EFF, she taught Internet Law as an adjunct professor at St. John’s University School of Law, and practiced intellectual property and technology litigation at Kramer Levin in New York.

Thanks to our friends at DIY Space Exploration for making a new infographic called “What Is Open Source Hardware”

CC share alike attribution: By DIY Space Exploration and graphic artist Adriana Danaila

The votes are in, thank you to those members who voted! In order to make anything official OSHWA always needs to reach quorum (10% of our membership), so your vote counts in more ways than one!

New board members are:

Gabriella Levine, David Mellis, Star Simpson, Jeffery Warren, and Emile Petrone. 

Click here to see the data.

Thank you to all who participated in nominations.

OSHWA is looking for 5 new faces to join the board of directors for the Open Source Hardware Association. Please fill out this form to become a nominee or forward the link to the person you wish to nominate for them to fill out. The purpose of this form will be to tell voting members a bit about yourself. We will be publish the nominees and their answers on Aug. 27th. Board members hold a 2-year position. Once board members have been chosen by the community, the board will appoint a President, VP, and Secretary. Board responsibilities include fundraising, advising on goals and direction and carry out compliance with the organizations purposes and bylaws. Current board members will meet with nominees who are present at the Summit during lunch on Sept.6th. Board members Windell Oskay, Danese Cooper, and Addie Wagenknecht will remain on the board. Nominations will be open until Aug. 26th.

Nominee form.

Member voting will take place Sept 6 &7. Want to vote in the election? Become a member if you’re not already! Please note that only individuals can vote, corporate members cannot.

Tickets are now on sale for the 2013 Open Hardware Summit, to be held September 6, 2013 at MIT.

We look forward to seeing you there!

The OSHWA board has appointed AddieWagenknecht and Jimmie Rodgers as the 2013 Open Hardware Summit co-chairs!

Addie Wagenknecht completed a Masters at New York University as a Wasserman Scholar and shortly after held fellowships at Eyebeam Atelier, CultureLab UK and more recently at HyperWerk Institute for Post-Industrial Design as well as Carnegie Mellon University STUDIO for Creative Inquiry. She is currently a Mozilla Open(art) Fellow, an artist at Free Art and Technology Lab a.k.a. F.A.T. Lab as well as co-founder of NORTD labs who created the open source lasercutter Lasersaur. The Lasersaur Project is estimated to have around 1,000 active developers including New York University, Stanford University and Carnegie Mellon University among others. Addie is a professor in robotics and open source computation at the institut für experimentelle architektur hochbau at the University of Innsbruck, Austria. Wagenknecht’s research, collaborations and projects are documented in a number of academic papers, books and magazines such as the Economist, Forbes, Popular Mechanics, MIT Technology Review, Gizmodo, Slashdot, Engadget, Heise, ARTnews and Der Standard. She currently splits her time between New York City and Austria (but really just lives on the internet). Through her artistic and scientific practices she hopes to challenge the status quo and create a sense of bittersweet irony (preferably both at once). More information can be found at her website http://placesiveneverbeen.com and lasersaur.com

Jimmie Rodgers has been an open hardware developer since 2009, his most popular hardware project being the LoL Shield for Arduino. He’s been involved in organizing events of nearly every size, and his efforts at these events have led to over 40,000 people learning to solder. He was a founding board member of Artisan’s Asylum (world’s largest hackerspace in both size and membership), where he teaches and makes things full time as well as manages the Electronics and Robotics lab. He recently received an Awesome Foundation grant, with which he will be working on open source laser-cut quilts in the coming months.