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Protection Against Patenting Inquiry (TVP)
  • Eric Mossotti wrote:
    (Date: Thu, Mar 22, 2012 at 1:35 PM)

    I am currently involved with the Venus Project, you have probably heard of it. I am trying to get TVP to start transitioning more to an Open operational model such as your OSE.. We are concerned about how to protect against patent trolling, if the detailed plans and technical blueprints were released to the public like it seems you are doing.. Is there some kind of open licensing that you are using which protects people from patenting your blueprints and barring the public and OSE from using them for free? 

    I also have a thread on . So I would also invite you to contribute to that thread and help educate us on what you are doing and how it can replicated by TVP, if you are able to. I know many people are critical of TVP for precisely the lack of openness, but this is founded on concerns for safety.
  • 14 Comments sorted by
  • Thanks again for posting this elifarley. Let me know if I need to clarify or explain about anything.

    I'm just trying to figure out how OSE can somehow bypass the patenting process, when what they are doing is what would normally require it. Somethings cannot be protected by copyright, like detailed technical blueprints. So I I dunno if the stuff that cannot be protected by copyright can be covered by the GNU Free Documentation License or what, as it seems from the wiki, that this is the only thing that would cover things that are not covered by GNU GPL or CC.

    I'm looking into other things as well, like CERN's Open Hardware License, but I'm not sure about if it can be used for TVP related things that cannot be protected by copyright.
  • I am not overly familiar with US patent laws, but under Canadian legislation it is my understanding that you can only patent new ideas.

    1) If something has been previously patented: you can't patent it.
    2) If something has already been published/disclosed: you can't patent it.

    The fact that the GVCS is openly published, inherently prevents people from patenting the designs.
  • I'm thinking that Prior art, (2), would protect against patenting claims on things that have never been claimed before, for sure. I guess this is also known as defensive publication.
  • > 2) If something has already been published/disclosed: you can't patent it.

    If it has been publicly disclosed -one year- before the patent application, you can't patent it. A lesson I learned the hard way.

    This is from 35 U.S.C. 102(b). :


    35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

    A person shall be entitled to a patent unless -


    (b) the invention was patented or described in a
    printed publication in this or a foreign country or in public use or on
    sale in this country, more than one year prior to the date of the
    application for patent in the United States,


    My experience was a person who patented a device I'd invented, and who I could prove I'd sent an information package to fully describing the invention (this is pre-internet, when we kept mail records) and the first I heard of him other than as a potential customer was after the patent was granted and his attorney hit us with a cease-and-decist letter demanding back royalties. Showing his patent was identical to a device I was selling previous to his application, and that I'd sent him all the information he needed to file the patent, didn't slow the process a bit (he stated he'd invented it earlier but never published the invention nor built a prototype...but he'd applied for a patent and I hadn't so he wins).

    What saved me was I'd advertized the device in a somewhat obscure national magazine (Sports and Spokes, if you're curious) with a publication date more than a year previous to his application.
  • That's certainly good to know. I need to do more research. I simply am not certain, b/c i read different things..

    I think your statement is fallacious though well meaning, "If it has been publicly disclosed -one year- before the patent
    application, you can't patent it. A lesson I learned the hard way." I could be wrong, but it doesn't seem that way to me at the moment.

    "35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

    A person shall be entitled to a patent unless -

    (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or

    (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or"

    So actually, your lawyer may have been mistaken, or in your situation, it was actually a matter of you never had your invention published, save for in a commercial advertisement over a year before the other guy's claim. If you had published the things like OSE apparently does, then you wouldn't have even needed the "more than one year for sale" defense. That's just based on what I think it's saying in the full entry, not just (b). I'm referring to the exact same section, but you left out the other aspects..

    Thanks for you concern, and information on this, I am deeply grateful for any help I get with this.
  • This article might be of interest

    "An invention cannot be patented if there has been a public disclosure of said invention prior to the date of filing. This application for a scrotal support garment serves as a great example of rejection through non-patent literature. When you apply for a patent, the examiner can use any information available to the public to reject your application – not just patents."

    Since OSE publishes all of its "inventions" as soon as possible, I don't think they're patentable...not even by OSE after a year. Of course, that doesn't mean someone won't cost OSE a lot of time/money when they TRY.
  • Vote Up0Vote Down
    April 2012
    Unfortunately, OSE makes a lot of assumptions about how the process could or should work.  We wave our hands a bit towards Creative Commons, LGPL, OSH License, etc. without really consulting a legal professional.  I spoke to one not all that long ago about OSE's process.  She indicated that someone could take a published OSE design and file a patent on with as long as it was published within the last year.  The whole notion of "prior art" has been replaced in recent legislation by "first to patent".  Personally, I don't expect much to change until someone sees something worth while and files a patent on it.  Once the patent is in process, they can then file for a legal injunction against OSE to cease publication - ie, pull down the design they stole.  Should that ever happen, oh how the feathers will fly.

    - Mark

  • I'll be standing right beside you on the "I told you so" soapbox. It does seem like OSE should be devoting at least a small percentage of its resources to establishing a firm legal grounding.

    However, I don't think we really need to worry about someone patenting our designs until we start doing something new enough to be profitable. A big part of the "point" of OSE's work is that tons of useful stuff has already expired from patent protection and is ripe for simplification. Tractors are complicated largely because they CAN be, not because they need to be. I doubt anyone is ever going to be tempted to patent the first few generations of the LifeTrac. By the time it does finally become something that might be worth patenting, it will probably be protected by having been in the public domain for so long. Keep in mind that infrastructure changes slowly. Even a cheap tractor is going to be adopted slowly (as in years). Additionally, OSE is targeting the absolute lowest end of the market; arguably OSE is targeting the creation of a brand new market. 

    Stuff like the (at the moment imaginary) aluminum extractor could earn enough attention to become the center of a patent fight. But...that's assuming the thing even manifests. I'm not confident it will. 

    I'm more worried about the far more likely (inevitable) threat of being sued when someone stabs themselves in the eye with a tractor and goes looking for money. As far as I know there isn't any legal precedent for how to handle open source designs. But there is precedence for things like mail-order kits, and it isn't friendly. The only avenue I can see working is if a funded organization like OSE takes on liability for the designs, but as an organization with assets OSE is exactly the most attractive target (compared to individuals engaged in a hobby). So OSE could find itself sucked dry by court costs even if they are eventually exonerated. 
  • Mark, thanks for sharing your experience. What I would need further, is the exact source legislation that supports your statement that prior art has been replaced in recent legislation by first to patent. I have verified from Public Patent Foundation that the USA does recognize prior art, in the form previously discussed in this thread. You can see my tvpactivism thread link in the OP, in the comment section, I posted the verbatim quotation concerning prior art. If you know anything about pubpat, you can see that they are a very successful legal services organization that have overturned many big business's claims to patenting things that have no right being patented.

    Matt, yes, I think OSE should make sure that they are not going to be ruined by the legal system, such as being sued.. However, they may already be doing this, I'm not sure. OSE seems like a group of very intelligent people, I wouldn't doubt that they are doing things appropriately. I think that Open Hardware Licensing probably isn't required unless indeed the "prior art" defensive publication is no longer protected under federal law.
  • Maybe. If they are working on it they're keeping it a secret, which would be largely out of character.
  • This is an interesting question, which I've discussed at length with a heavy mechanic friend. A lot of liability law on different standards, manufacturers, and tradespeople who can operate/maintain heavy machinery. Couldn't come to a consensus on what this would mean towards OSE, but identified a lot of similar issues.

     To what extent is the open-source label a stamp of indemnity on a potential vendor? Does the organization who put forth the designs for the product that was actually built have liability as well as the vendor? Part of the relationship between buyer and seller is mixed up that puts a lot of our common law about these things at odds.

    I don't think OSE has done sufficient work towards dealing with these type of structural issues. I do support the work however and encourage a cheeky 'better to ask forgiveness than permission' perspective.

    (LifeTrac needs a driver cage and flamewall.)
  • I don't know if it is secret, or if I just have been unable to locate the information. I'm trying to read what I can on the wiki about this, I have some results, but not sure if they explain away our concerns entirely.

    "No contract; limited license

    Please make sure that you understand that the information provided here is being provided freely, and that no kind of agreement or contract is created between you and the owners or users of this site, the owners of the servers upon which it is housed, the individual Open Source Ecology Wiki contributors, any project administrators, sysops or anyone else who is in any way connected with this project or sister projects subject to your claims against them directly. You are being granted a limited license to copy anything from this site; it does not create or imply any contractual or extracontractual liability on the part of MediaWiki or any of its agents, members, organizers or other users.

    There is no agreement or understanding between you and Open Source Ecology Wiki regarding your use or modification of this information beyond the [/wiki/GNU_Free_Documentation_License GNU Free Documentation License] (GFDL); neither is anyone at Open Source Ecology Wiki responsible should someone change, edit, modify or remove any information that you may post on Open Source Ecology Wiki or any of its associated projects."

    "Jurisdiction and legality of content

    Publication of information found on Open Source Ecology Wiki may be in violation of the laws of the country or jurisdiction from where you are viewing this information. The MediaWiki database is stored on a server in the United States of America, and is maintained in reference to the protections afforded under local and federal law. Laws in your country or jurisdiction may not protect or allow the same kinds of speech or distribution. Open Source Ecology Wiki does not encourage the violation of any laws; and cannot be responsible for any violations of such laws, should you link to this domain or use, reproduce, or republish the information contained herein."

    So I don't think  that OSE can be held responsible for any use or misuse of the detailed information contained in the wiki. It seems that's where all the usable information is anyway. If there is no contractual agreement, then there is no liability for anyone, as nothing was ever agreed upon in the first place, other than that there is nothing agreed upon as to who is liable for what. And all this is consistent with federal and local laws, at least in the USA. No other country can enforce some international law, if other nations are not in agreement with them. Usually this would require some international treaty in order to be effective, I think..  I think OSE is in the clear, based on these facts.

    OpenSourceHardwareLicenses, don't sound like it has actual legal precedent, however Prior Art definitely does.

    "Distributive Economics - We recognize the challenges of sharing information openly – in that someone else can 'steal' an idea and capitalize on it. We address this issue by encouraging people to publish openly, so that prior art makes information accessible to all, and therefore, making information un-patentable and therefore incapable of being appropriated. In order to capture value, we encourage humans to organize around information resource commons, while building in a physical, productive infrastructure to convert information into the substance of modern-day living via benign, industrial processes"

    So actually, it seems OSE has already come to the conclusion that prior art renders information unpatentable.. elifarley hinted at this in previous emails, but I was uncertain.
  • The patent thing isn't the issue. Liability is the issue. Actually, that's not the issue either. The real issue is POTENTIAL liability. We aren't worried about OSE having to defend itself in court. We're worried about OSE being tied up in court so long that it goes bankrupt OR the people contributing to it getting dragged into court as individuals. The cases practically write themselves. Gross negligence, attractive nuisance, etc. 

    I think the best option at the moment is to reach out to legal institutions to form preemptive partnerships. There have to be a few groups that would be interested in defending open source principles in court and so would help bear the cost of defending those principles.
  • Matt, I came across this information not too long ago..

    Also the pubpat, link i mentioned previously.. It seems that in some circumstances the court orders the losing party to pay for the court expenses. I'm thinking that happens typically, at least when the losing party initiates the legal fiasco in the first place, and/or it is requested by the winning party, especially if they can justify it. Not sure exactly though about everything, but it does happen.


    "In May 2005, Daniel Wallace filed suit against the Free Software Foundation in the Southern District of Indiana, contending that the GPL is an illegal attempt to fix prices (at zero). The suit was dismissed in March 2006, on the grounds that Wallace had failed to state a valid anti-trust claim; the court noted that "the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers".[57] Wallace was denied the possibility of further amending his complaint, and was ordered to pay the FSF's legal expenses."


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