Submitted by Tucson Amateur Packet Radio is sponsoring a plan to encourage and popularize the idea of open source – for hardware components. The organization released a draft of an open source license for computer hardware this month, and issued a public call for comments on the draft. The new license is already drawing criticism from prominent members of the open source community.
Copyright covers expression. Patents cover ideas. In a hypothetical world that isn’t full of idiot legislators and activist judges, there exists no atomic unit of intellectual property that can be covered by both. Something is either an expressive work or an embodiment of an idea.
Software is a logical expression of a certain manipulation of information. Hardware is an implementation of a set of ideas that facilitate the manipulation of information. Software should be covered by copyright. Hardware should be covered by patents. There should be no crossover.
So what is “free hardware”? It is hardware that is covered by patents which are licensed under terms that preserve the freedom of the hardware they describe. Anyone may use, modify, and redistribute the hardware in unmodified or modified form. However the distributor is required to file patents for any modifications and license those patents under the same terms under which they received licenses for the existing patents.
What does this mean for average hardware users? It means that all aspects of the hardware are documented, which increases competition and lowers prices for support, maintenance, and repair services. Since anyone and everyone is effectively a licensee of the patents, it is impossible for anyone to claim that anyone else is infringing these patents. New steppings, revisions, and extensions of existing hardware should become more abundant and much cheaper because any hardware vendor can elaborate on a free hardware design without incurring licensing fees.
If free hardware is implemented as described above, it would be great for consumers. But if it’s based on some odd twists on copyright, it’s more likely to cause legal challenges and confusion.
Patents definitely do not cover ideas. They cover inventions, which can be devices, substances, or methods of production.
An algorithm is a method of production, and is, outside of the United States, for the most part, explicitly excluded from patent protection.
But even so, your dichotomy does not hold. All expressive works are no more than embodiments of ideas. Algorithmic generation of music is the clearest example of this.
Beyond that, in this day of hardware synthesis from programmatic description, it’s often not all that clear where the hardware ends and the software begins.
The purpose of a patent is to disclose an invention in a way that prohibits others from using it. There is no reason to patent an invention that you do not wish to enforce the patent on. Merely document the design so that it can be used as prior art in defense against later attempts to patent the device and move on.
However the distributor is required to file patents for any modifications and license those patents under the same terms under which they received licenses for the existing patents.
Such a licensing requirement is unenforcable under patent law. You can not guarentee that a modification would be sufficiently novel to justify a patent. Therefor you cannot make patent application a requirement for modification of the device described in the patent.
It means that all aspects of the hardware are documented, which increases competition and lowers prices for support, maintenance, and repair services.
Patent law only requires sufficent documentation that would allow an expert to implement the patent. Hardware implementation always contains a lot of bits that aren’t mentioned in the patents covering the hardware. There’s nothing in licensing patents from someone else that requires you to document the surrounding bits.
You’re right on the scope of patent protection, I tried to simplify and ended up wrongifying.
I thought there were several jurisdictions outside the US that allow software patents. Even though they get enough bad press today to influence legislators, software patents are obviously a threat that we are far from defeating.
I agree on the blurry line between hardware and software. A lot of “hardware” actually runs software or firmware on the CPU, and one of my friends thinks there will be new distinctions (i.e. toughware or flexware).
I disagree on the purpose of filing patents. If someone invents something and wants to ensure it’s free for anyone to implement, then they must file a patent. If they don’t, then someone else might. In first-to-file jurisdictions, the patent will be granted if it has merit. In prior art jurisdications, the inventor might have to implement the invention before a second party files in order to prevent the patent from being granted.
Perhaps the patents covering the modifications wouldn’t be granted, but that implies that any other attempts to patent the modifications in question should (theoretically) be denied.
I imagined that the patents covering free hardware would describe the hardware in full, with enough information in the relevant patents for an expert to implement the entire system. Perhaps the unoriginal, obvious, or otherwise meritless parts of the design won’t be patentable. But in any case, the design could be posted in its entirety on the project’s website.
Not true. Cloudy has already covered some of this, but music, art, literature are all ideas as much as they are expressions, and patents simply describe a method for producing a novel invention.
In my view, software should not be covered by copyright, but rather by patent law. Software is clearly distinct from other binary information, such as a music file. Software is the critical part of a machine – without software, a computer is a useless paperweight.
Software behaves like a virtual machine, an invention that does something, and should be treated in a similar way under IP law as a new type of engine or a mechanical device would, with one exception – where patents usually hold for 20 – 50 years depending on the jurisdiction, software patents should only last for no more than 5 years, preferably about 2-3 years, as the pace of invention in the software world is so fast that any software that is more than 5-10 years old will most likely be useless or obsolete by the time the patent expires.
So basically what the ‘open hardware’ supporters should be doing, is to provide for, or advocate for a documentation framework. Say maybe a wiki for ‘open’ hardware ideas. Then it’s in the public… open, and documented to prevent others from enforcing patents on it. This is good because it doesn’t involve a viral license, and someone could use part open and part closed to make something.
BUT… how do you keep the original creator of the HW design from later patenting the idea? This would be necessary to protect everyone downstream. Maybe before posting to the HW documentation site, you have to agree to give up your rights to patent that idea? Would that even be binding?