Open Source Hardware

1. OPEN SOURCE HARDWARE Industrial Revolutions Challenges to the Patent System Dannie Jost World Trade Institute, University of Bern, Switzerland 19/09/2012 Dannie Jost #OKFest 1
2. Question: How many industrial revolutions does it take to change the way that our society understands and uses intellectual property? 19/09/2012 Dannie Jost #OKFest 2
3. Why this, why now? … we want to be able to break the constraints of the existing limitations in sharing knowledge and know-how … the pace of development is too slow … we want to tailor the technology … we want to own the technology that we use … we want to share … we want to learn 19/09/2012 Dannie Jost #OKFest 3
4. OHANDA Freedom 0: The freedom to use the device for any purpose. Freedom 1: The freedom to study how the device works and change it to make it to do what you wish. Access to the complete design is precondition to this. Freedom 2: Redistribute the device and/or design (remanufacture). Freedom 3: The freedom to improve the device and/or design, and release your improvements (and modified versions in general) to the public, so that the whole community benefits. Access to the complete design is precondition to this. 19/09/2012 Dannie Jost #OKFest 4
5. four freedoms • Goods • Capital • Services • People 19/09/2012 Dannie Jost #OKFest 5
6. Marx & Engels Indefeasible chartered freedom – free market 19/09/2012 Dannie Jost #OKFest 6
7. the idea is… to foster a community where those who benefit from the work of others in turn contribute their improvements to that community. (Ackerman, 2008) 19/09/2012 Dannie Jost #OKFest 7
8. trends #1 makers and hackers Commons based peer production is emerging in the digitally networked environment (Benkler & Niessenbaum 2006) #2 TRIPS + clauses (ACTA, TPP) 19/09/2012 Dannie Jost #OKFest 8
9. game shifters technology ① Literacy (analog and digital) ② Design Sampling ③ Digital Fabrication ④ Broadband (fixed, mobile) 19/09/2012 Dannie Jost #OKFest 9
10. paradigm shifts in the making • Creation – from cloistered to ubiquitous • Production – from centralized to distributed • Organization of the collective – from static nation states to citizen’s interests 19/09/2012 Dannie Jost #OKFest 10
11. dynamic frameworks • Social & Political • Science & Technology • Legal • Economics (politics, organization, technology, legal) 19/09/2012 Dannie Jost #OKFest 11
12. industrial revolutions #1 steam engine (James Watt 1736-1819) #2 manufacturing, electricity generation #3 candidates .integrated services and goods .additive manufacturing .makers .hackerspaces .low carbon … 19/09/2012 Dannie Jost #OKFest 12
13. INTELLECTUAL PROPERTY RIGHTS (IPR) • Objects – Patents (TRIPS 1994; EPC 1973, PCT 1970) – Trademarks – Copyright – Designs (Hague, legal texts) – Integrated Circuits (Washington Treaty, 1989) – Geographical Indications – Trade Secrets – Traditional Knowledge 19/09/2012 Dannie Jost #OKFest 13
14. Photo: mprove 19/09/2012 Dannie Jost #OKFest 14 14
15. … the Republic of Florence issued a patent in 1421 to the eminent architect and inventor, Filippo Brunelleschi, for his ship, which was designed to transport Carraran marble for his famous Duomo of Florence. However the ship sunk, and with it the (first) Florentine patent system. 19/09/2012 Dannie Jost #OKFest 15
16. Venice, 1474 “The Venetian Republic, on March 19, 1474, enacted the first known general patent statute, with overwhelming support in the Venetian legislature[39]. This statute, which sought to encourage technological advancement by issuing private grants and importation licenses, established a foundation for the world’s first patent system, leading one historian to proclaim that ‘the international patent experience of nearly 500 years has merely brought amendments or improvements upon the solid core established in Renaissance Venice’ “ Nard, Craig A, and Morriss, Andrew P. “Constitutionalizing Patents: From Venice to Philadelphia.” Review of Law & Economics 2, no. 2 (2006): 223- 321. 19/09/2012 Dannie Jost #OKFest 16
17. Venice, 1474 We have among us men of great genius, apt to invent and discover ingenious devices; and in view of the grandeur and virtue of our City, more such men come to us every day from divers parts. preamble 19/09/2012 Dannie Jost #OKFest 17
18. Statute of Monopolies, 1624 … any Declaration before-mentioned shall not extend to any Letters Patents and Grants of Privilege for the Term of fourteen Years or under, hereafter to be made, of the sole Working or Making of any manner of new Manufactures within this Realm, to the true and first Inventor and Inventors of such Manufactures, which others at the Time of Making such Letters Patents and Grants shall not use, so as also they be not contrary to the Law, nor mischievous to the State, by raising Prices of Commodities at home, or Hurt of Trade, or generally inconvenient ... 19/09/2012 Dannie Jost #OKFest 18
19. US Constitution, 1787 Sec. 8 The Congress shall have Power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;  First Congress, Patent Act, 1790 19/09/2012 Dannie Jost #OKFest 19
20. 1883 • Paris Convention for the Protection of Industrial Property • 174 Parties (Member States) • Article 4: [A to I. Patents, Utility Models, Industrial Designs, Marks, Inventors’ Certificates: Right of Priority G. Division of the Application 19/09/2012 Dannie Jost #OKFest 20
21. Fast Forward… • 1947 GATT (1993) General Agreement on Tariffs and Trade • 1994 GATT • 1995 WTO World Trade Organization – Uruguay Round 1986-1994 – Trade Related Aspects of Intellectual Property Rights 19/09/2012 Dannie Jost #OKFest 21
22. TRIPS Article 27* Patentable Subject Matter 1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.(5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. * As of 10 May 2012, the WTO counted 155 Member States 19/09/2012 Dannie Jost #OKFest 22
23. … Possible Exclusions I 2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law. 19/09/2012 Dannie Jost #OKFest 23
24. … Optional Exclusions II 3. Members may also exclude from patentability: (a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non- biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement. 19/09/2012 Dannie Jost #OKFest 24
25. What is an invention? EPC Article 52(2) recites what is not regarded as an invention: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentation of information. 19.09.2012 25
26. what have we learned from patent law history? • It started with the renaissance guilds • It has not changed much since then • It is part of international economic law • It is based on the sovereignty of the nation state • It serves the interests of industrial production entities • It creates repository of documents describing technologies; public domain 19/09/2012 Dannie Jost #OKFest 26
27. Is this the fear? ‘[open hardware designers] theoretically not have much legal recourse if their designs get patented, made/sold, or used in a closed system’ A Powell, Democratizing production through open source knowledge: from open software to open hardware, 34 Media, Culture & Society 691–708 (2012). 19/09/2012 Dannie Jost #OKFest 27
28. You are free to… • Put anything in the public domain.. – Just publish it (defense publishing) • publication is not synonym with access • publication is the first step in access • access is the first step in share-alike – IF YOU PUBLISH – like in make it public – YOU DESTROY THE NOVELTY OF ANY SUBSEQUENT ATTEMPT AT PATENTING ☞ STANDARD 19/09/2012 Dannie Jost #OKFest 28
29. Of all the IPR objects, which ones can open hardware use? • Trademarks • Expired patent specifications, unsuccessful patent applications (public domain) • Copyright (License) 19/09/2012 Dannie Jost #OKFest 29
30. Other Options • Private Standard • Label • Database • … • … • … 19/09/2012 Dannie Jost #OKFest 30
31. Thank you! @dannie http://about.me/danniejost YOUR QUESTIONS ARE WELCOME 19/09/2012 Dannie Jost #OKFest 31

Editor's Notes

The EU four freedoms
Simple until you think about it a bit more.
EmergenceBottom upTop downWho will win?Balance
Paradigm shifts are the evergreens in social evolution
The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994. (Part of the Uruguay round)
Or, to paraphrase the noted American philosopher Alfred North Whitehead, all Western patent systems consist of but a series of footnotes to the Venetian patent statute. (same source)
Many Italian guilds adopted regulations that granted temporally-limited monopolies on innovations, beginning with the silk weaving industry, including the development of new patterns of silk weaving, as well as the invention of new machinery. Because Venetian guilds were “powerless to grant or allow monopolies by action of their own,” however, Prager argues that the regulations required monopolies to be issued by the state, making them the forerunners of modern patents. Prager’s answer to the questions of “Why Venice?” and “Why the fifteenth century?” is that “quasi-patents were most developed” in Venice and “that the silk patent law came when the idea of intellectual property was gaining approval.” Thus, “[t]he conclusion seems justified that it was this ancient, newly vitalized idea which expanded the medieval tradition of quasi-patents into the first modern patent system” (Prager, 1952:131-132). Third, although primarily focused on trading, Venice also had some important local industries, such as glass and other luxury goods,59 Rather than controlling the details of production, the Venetian guilds’ primary role was safeguarding the boundaries of the craft,76 allowing individuals within each craft to compete through innovation.77
focus on the one unambiguous feature of the Statute and the struggles over monopolies that produced it: the dispute between crown and Parliament over who would evaluate the validity of individual grants of patents of monopoly. The innovation introduced in England was not the overcoming of the common law’s long-standing prohibition on all monopolies, as the crown continued to issue monopoly grants, but the assertion of the right to have claims to monopolies adjudicated in a neutral forum against a utilitarian standard.
Section 8.The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;To borrow money on the credit of the United States;To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;To provide for the punishment of counterfeiting the securities and current coin of the United States;To establish post offices and post roads;To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;To constitute tribunals inferior to the Supreme Court;To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;To provide and maintain a navy;To make rules for the government and regulation of the land and naval forces;To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--AndTo make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
The WTO was born out of negotiations, and everything the WTO does is the result of negotiations. The bulk of the WTO’s current work comes from the 1986–94 negotiations called the Uruguay Round and earlier negotiations under the General Agreement on Tariffs and Trade (GATT). The WTO is currently the host to new negotiations, under the ‘Doha Development Agenda’ launched in 2001.
GATT was signed in 1947 and lasted until 1993, when it was replaced by the WTO in 1995
What constitutes “serious prejudice to the environment” is open for debate.Exploitation may be prohibited in the country of origin, but that does not prevent the applicant from extending its patent family to another nation where exploitation is within the law. Mention the Doha Declaration on AIDS drugs which Article 66.1 and 66.2.14 November 2001 Doha Declaration §17. We stress the importance we attach to implementation and interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner supportive of public health, by promoting both access to existing medicines and research and development into new medicines and, in this connection, are adopting a separate declaration.
Only of interest for those working in biotechnology and renewable energy, biomass, etc.
So, where do we start

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Editor's Notes