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If the project stops working, or stops working as well, then the part may be the kind of
functional element that is protectable by patent.
Licensing a Patent
At first glance, patents seem to be at the core of open source hardware. After all, patents
protect things that do things—that's hardware! And if patents are to hardware as copyrights
are to software, then the key to licensing open source hardware is to find a way to license
the patents.
While reasonable on its face, this impulse breaks down in practice. First, as discussed
earlier, just because something is the type of useful object that falls within the scope of
patent does not mean that it is actually patentable. To get a patent, you need to prove that
the thing itself is novel. For many projects, that simply will not be possible. While it
might be a new open source hardware project, there may be plenty of earlier examples
that would prevent it from actually being patentable.
Perhaps more importantly, even if your project could qualify for a patent, getting a pat-
ent is expensive in terms of both time and money. Obviously, this is a barrier to open
source hardware projects that are bootstrapping or that do not have easy access to patent
attorneys. Of course, these descriptions apply to many hardware start-ups.
There is also another barrier to obtaining a patent that is unique to open source hard-
ware. One of the things that makes open licenses like those maintained by Creative Com-
mons so popular is that they allow people to give away rights that they acquired for free.
Everything that you can license with a CC license is protected by copyright, whether you
like it or not. For many people, the fact that they made no effort to secure the copyright
protection makes it that much easier to release it to the larger community.
Patent fundamentally shifts that calculus. You need to take affirmative, expensive steps
to get that patent. Obtaining a patent with the specific purpose of broadly licensing it to
the community can make the financial commitment a hard one to justify. This is especially
true when other ways to share with the community—namely, not patenting your hardware
at all and doing a good job of documenting the project—are so much easier. For many
projects, obtaining a patent will be like building an expensive cage to trap a wild animal
just so that you can turn around and set the animal free again. It is probably easier for
everyone to just keep the animal—and the invention—free from IP restrictions in the first
place.
In many ways, this lack of automatic protection is a great strength of open source hard-
ware. Open licenses were originally designed to circumvent a defect in the law—namely,
the problem that copyright was automatically locking up creativity for the life of the au-
thor plus 70 years. In many cases, that defect does not exist for hardware. Most hardware
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