Open Licensing—Advanced Sharing - Open-Source Lab: How to Build Your Own Hardware and Reduce Research Costs - page 45

1. Higher transaction costs due to IP for information exchange slows technical progress [ 24 ] .
2. The inconsistently flexible “nonobvious” requirement of patents (which at this point is es-
sentially the subjective opinion of specific patent examiners) locks away common-sense ap-
proaches in the anticommons to solving problems, and basic, obvious algorithms for creat-
ing innovations [ 25 ] .
3. Patenting of building block technologies holds back downstream research and develop-
ment, potentially crippling entire fields for 20-year stretches [ 26 ] .
4. Many patents are simply not used, but only prevent others from following lines of inquiry
[ 27 ] .
Considering the current rather sobering (perhaps even terrifying) state of world afairs 29 ,
where there are viable technical solutions to many of our global challenges, it is a tragedy to
allow these inefficiencies to retard innovation. This “IP tragedy” is acute in many fields, like
that of nanotechnology, where an open-source model has also been suggested to put innova-
tion back on the fast track [ 13 , 28 - 34 ] . For now, however, IP law still exists and provides nu-
merous problems for the open-source community.
The largest problem with the existence of IP laws and the open-source community's at-
tempts to maintain a fertile public domain or commons is the uncertainty of the solution. The
Achilles' heal of the available open-source licenses, which were discussed in the last several
sections, is that they are largely new and untested in court. There remain many questions as
to whether the licenses can be legally enforced [ 35 ]. There is also the added complexity that
as open-source “products” are often created with the combination of ideas from many people
(perhaps even under multiple inconsistent licenses), there would be difficulties in determin-
ing legally recognized contributions. Making maters even more convoluted, there are also un-
answered questions from the contract law and property rights domains, as open licenses do
not adhere strictly to either type of legal domain. McGowan points out that those currently
open licenses would have to give way to the Copyright Act and its IP rights in a court of law
[ 35 ] . Copyright law in the United States, perhaps more than other domains of IP, has been
completely overrun by special interests and their lobbyists to the detriment of the public do-
main. Without further comment on the absurdity of it all, I submit as evidence the following
fact and leave it to the reader to decide for themselves whose interests are best served by such
laws: copyright in the United States lasts 70 years after the death of author . On the other hand, if
a work has been authored by an immortal corporation, then the copyright lasts 95 years from
publication or 120 years from creation (whichever expires irst).
For most of OSHW design (excluding documentation and copyright of decorative ele-
ments), patent law is the primary concern. Unlike copyright, which is automatic, patents actu-
ally involve an investment (usually quite substantial 30 ) to acquire. In order for the Patent and
Trademark Office to allow a patent, the invention must be new, useful, and nonobvious. 31 The
moral contract for obtaining a 20-year monopoly on the idea is that the inventor fully discloses
information that would allow others to utilize the invention. The practice today is that patents
are legal documents with very limited technical use . 32 They are writen by lawyers for other
lawyers to read, and their purpose is to maximize legal scope, while remaining seemingly lim-
ited enough to obtain the monopoly rights.
This is a problem for the innovators—the scientists and engineers—because patents them-
selves have become an intellectual minefield. There is no exception for people to independ-
ently make the patented object in patent law. There is no fair use, no exception for home use or
for copying objects for personal use. Worse yet, most complicated products (e.g. our favorite
hardware for scientific experiments) is not covered by one patent, but probably dozens (both
from combination patents that put already patented ideas together in a new way and by the