SlideShare a Scribd company logo
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
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
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
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
four freedoms
•   Goods
•   Capital
•   Services
•   People




19/09/2012        Dannie Jost #OKFest   5
Marx & Engels
Indefeasible chartered freedom – free market




19/09/2012         Dannie Jost #OKFest         6
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
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
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
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
dynamic frameworks
•   Social & Political
•   Science & Technology
•   Legal
•   Economics
    (politics, organization, technology, legal)




19/09/2012             Dannie Jost #OKFest        11
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
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
Photo: mprove



19/09/2012   Dannie Jost #OKFest
                     14                        14
… 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
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
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
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
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
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
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
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
…
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
…
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
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
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
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
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
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
Other Options
• Private Standard
• Label

•   Database
•   …
•   …
•   …

19/09/2012           Dannie Jost #OKFest   30
Thank you!
   @dannie
   http://about.me/danniejost

   YOUR QUESTIONS ARE WELCOME


19/09/2012                      Dannie Jost #OKFest   31

More Related Content

What's hot

Intellectual property rights 1
Intellectual property rights 1Intellectual property rights 1
Intellectual property rights 1
Sonam Gandhi
 
An elementary account on wto, gatt & trips
An elementary account on wto, gatt & tripsAn elementary account on wto, gatt & trips
An elementary account on wto, gatt & trips
Dr.S Manikandan
 
business law
business lawbusiness law
business law
samarpita27
 
Patent Damages
Patent DamagesPatent Damages
Patent Damages
Altacit Global
 
Wipo
WipoWipo
How International IP Laws Affect PR Practice in the Digital Age
How International IP Laws Affect PR Practice in the Digital AgeHow International IP Laws Affect PR Practice in the Digital Age
How International IP Laws Affect PR Practice in the Digital Age
Sarah Jackson
 
Music & Innovation
Music & InnovationMusic & Innovation
Music & Innovation
Christopher Baker
 
Marks patents science technology 1
Marks patents science technology 1Marks patents science technology 1
Marks patents science technology 1
Brenda Sustaita
 
protectable subject matters, period of protection and protection in biotecth...
 protectable subject matters, period of protection and protection in biotecth... protectable subject matters, period of protection and protection in biotecth...
protectable subject matters, period of protection and protection in biotecth...
B. BHASKAR
 
TRIPS ppt
TRIPS pptTRIPS ppt
TRIPS ppt
Mohitsh2
 
Intellectual property law
Intellectual property lawIntellectual property law
Intellectual property law
JenniferShaffer14
 
Ownership and period of protection
Ownership and period of protectionOwnership and period of protection
Ownership and period of protection
abhihullahalli
 
Meaning and scope intellectual property rights
Meaning and scope intellectual property rightsMeaning and scope intellectual property rights
Meaning and scope intellectual property rights
Akshay Kumar
 
"Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu...
"Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu..."Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu...
"Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu...
GoldsteinPatentLaw
 
Wipo
WipoWipo
Wipo
harshaec
 
Basics of Patent Law Outline
Basics of Patent Law OutlineBasics of Patent Law Outline
Basics of Patent Law Outline
Kikuyu Daniels
 
Chapter 8 -
Chapter 8 - Chapter 8 -
Chapter 8 -
UAF_BA330
 
IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...
IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...
IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...
EUDAT
 
INDIAN LEGISLATION IN PROTECTING IPR
INDIAN LEGISLATION IN PROTECTING IPRINDIAN LEGISLATION IN PROTECTING IPR
INDIAN LEGISLATION IN PROTECTING IPR
Muttu Iliger
 
Lesson4
Lesson4Lesson4
Lesson4
Lyle
 

What's hot (20)

Intellectual property rights 1
Intellectual property rights 1Intellectual property rights 1
Intellectual property rights 1
 
An elementary account on wto, gatt & trips
An elementary account on wto, gatt & tripsAn elementary account on wto, gatt & trips
An elementary account on wto, gatt & trips
 
business law
business lawbusiness law
business law
 
Patent Damages
Patent DamagesPatent Damages
Patent Damages
 
Wipo
WipoWipo
Wipo
 
How International IP Laws Affect PR Practice in the Digital Age
How International IP Laws Affect PR Practice in the Digital AgeHow International IP Laws Affect PR Practice in the Digital Age
How International IP Laws Affect PR Practice in the Digital Age
 
Music & Innovation
Music & InnovationMusic & Innovation
Music & Innovation
 
Marks patents science technology 1
Marks patents science technology 1Marks patents science technology 1
Marks patents science technology 1
 
protectable subject matters, period of protection and protection in biotecth...
 protectable subject matters, period of protection and protection in biotecth... protectable subject matters, period of protection and protection in biotecth...
protectable subject matters, period of protection and protection in biotecth...
 
TRIPS ppt
TRIPS pptTRIPS ppt
TRIPS ppt
 
Intellectual property law
Intellectual property lawIntellectual property law
Intellectual property law
 
Ownership and period of protection
Ownership and period of protectionOwnership and period of protection
Ownership and period of protection
 
Meaning and scope intellectual property rights
Meaning and scope intellectual property rightsMeaning and scope intellectual property rights
Meaning and scope intellectual property rights
 
"Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu...
"Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu..."Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu...
"Intellectual Property Basics for Entrepreneurs"--presentation by Pat Werschu...
 
Wipo
WipoWipo
Wipo
 
Basics of Patent Law Outline
Basics of Patent Law OutlineBasics of Patent Law Outline
Basics of Patent Law Outline
 
Chapter 8 -
Chapter 8 - Chapter 8 -
Chapter 8 -
 
IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...
IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...
IPR: Legal Issues in Research Data Collection and Sharing by EUDAT | www.euda...
 
INDIAN LEGISLATION IN PROTECTING IPR
INDIAN LEGISLATION IN PROTECTING IPRINDIAN LEGISLATION IN PROTECTING IPR
INDIAN LEGISLATION IN PROTECTING IPR
 
Lesson4
Lesson4Lesson4
Lesson4
 

Similar to Open Source Hardware

Chapter 6_dp-pertemuan_9
 Chapter 6_dp-pertemuan_9 Chapter 6_dp-pertemuan_9
Chapter 6_dp-pertemuan_9
UNIVERSITAS TEKNOKRAT INDONESIA
 
Ipr trips&trims
Ipr trips&trimsIpr trips&trims
Ipr trips&trims
Ruchir Shukla
 
Drug Regulatory Affairs Presentation
Drug Regulatory Affairs PresentationDrug Regulatory Affairs Presentation
Drug Regulatory Affairs Presentation
Sagar Ghotekar
 
Chapter14.ppt
Chapter14.pptChapter14.ppt
Chapter14.ppt
TaufikIqbalR1
 
The Right to Share: Principles on Freedom of Expression and Copyright in th...
The Right to Share:   Principles on Freedom of Expression and Copyright in th...The Right to Share:   Principles on Freedom of Expression and Copyright in th...
The Right to Share: Principles on Freedom of Expression and Copyright in th...
Karlos Svoboda
 
Principles on Freedom of Expression and Copyright in the Digital Age
Principles on Freedom of  Expression and Copyright  in the Digital AgePrinciples on Freedom of  Expression and Copyright  in the Digital Age
Principles on Freedom of Expression and Copyright in the Digital Age
Karlos Svoboda
 
Intellectual property rights
Intellectual property rightsIntellectual property rights
Intellectual property rights
Tanuj Poddar
 
Intellectual property rights
Intellectual property rightsIntellectual property rights
Intellectual property rights
Tanay92
 
20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt
20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt
20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt
Mehdi Rahmani
 
Intellectual property - patent rights.pdf
Intellectual property - patent rights.pdfIntellectual property - patent rights.pdf
Intellectual property - patent rights.pdf
Er. Rahul Jarariya
 
2010 11 pgp1-lab_written report_section b_group 12_dec20
2010 11 pgp1-lab_written report_section b_group 12_dec202010 11 pgp1-lab_written report_section b_group 12_dec20
2010 11 pgp1-lab_written report_section b_group 12_dec20
Anirban Chakraborty
 
An overview to Intellectual Property Rights in India
An overview to Intellectual Property Rights in IndiaAn overview to Intellectual Property Rights in India
An overview to Intellectual Property Rights in India
Avi Choudhary
 
Basics of IPRs by Dr. sujit kumar
Basics of IPRs by Dr. sujit kumarBasics of IPRs by Dr. sujit kumar
Basics of IPRs by Dr. sujit kumar
sujit3773
 
Fscons patents2012
Fscons patents2012Fscons patents2012
Fscons patents2012
freedeb
 
Khaleel Jordan Policies
Khaleel Jordan PoliciesKhaleel Jordan Policies
Khaleel Jordan Policies
QRCE
 
Foundation of patent law
Foundation of patent lawFoundation of patent law
Foundation of patent law
Rajalingam Balakrishnan
 
Intellectual Property Rights
Intellectual Property Rights Intellectual Property Rights
Intellectual Property Rights
Ritu Sah
 
Intellectual property ats
Intellectual property atsIntellectual property ats
Intellectual property ats
Dr.Aravind TS
 
Intellectual property rights lecture.it contain general introduction, meaning...
Intellectual property rights lecture.it contain general introduction, meaning...Intellectual property rights lecture.it contain general introduction, meaning...
Intellectual property rights lecture.it contain general introduction, meaning...
NidhiBharghat1
 
Intellectual Property and Trade Mark
Intellectual Property and Trade MarkIntellectual Property and Trade Mark
Intellectual Property and Trade Mark
sam ran
 

Similar to Open Source Hardware (20)

Chapter 6_dp-pertemuan_9
 Chapter 6_dp-pertemuan_9 Chapter 6_dp-pertemuan_9
Chapter 6_dp-pertemuan_9
 
Ipr trips&trims
Ipr trips&trimsIpr trips&trims
Ipr trips&trims
 
Drug Regulatory Affairs Presentation
Drug Regulatory Affairs PresentationDrug Regulatory Affairs Presentation
Drug Regulatory Affairs Presentation
 
Chapter14.ppt
Chapter14.pptChapter14.ppt
Chapter14.ppt
 
The Right to Share: Principles on Freedom of Expression and Copyright in th...
The Right to Share:   Principles on Freedom of Expression and Copyright in th...The Right to Share:   Principles on Freedom of Expression and Copyright in th...
The Right to Share: Principles on Freedom of Expression and Copyright in th...
 
Principles on Freedom of Expression and Copyright in the Digital Age
Principles on Freedom of  Expression and Copyright  in the Digital AgePrinciples on Freedom of  Expression and Copyright  in the Digital Age
Principles on Freedom of Expression and Copyright in the Digital Age
 
Intellectual property rights
Intellectual property rightsIntellectual property rights
Intellectual property rights
 
Intellectual property rights
Intellectual property rightsIntellectual property rights
Intellectual property rights
 
20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt
20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt
20070423_NYCLA_NYC_TechnologyLicensingTodayTradeSecretsTradeSecretLicensing1.ppt
 
Intellectual property - patent rights.pdf
Intellectual property - patent rights.pdfIntellectual property - patent rights.pdf
Intellectual property - patent rights.pdf
 
2010 11 pgp1-lab_written report_section b_group 12_dec20
2010 11 pgp1-lab_written report_section b_group 12_dec202010 11 pgp1-lab_written report_section b_group 12_dec20
2010 11 pgp1-lab_written report_section b_group 12_dec20
 
An overview to Intellectual Property Rights in India
An overview to Intellectual Property Rights in IndiaAn overview to Intellectual Property Rights in India
An overview to Intellectual Property Rights in India
 
Basics of IPRs by Dr. sujit kumar
Basics of IPRs by Dr. sujit kumarBasics of IPRs by Dr. sujit kumar
Basics of IPRs by Dr. sujit kumar
 
Fscons patents2012
Fscons patents2012Fscons patents2012
Fscons patents2012
 
Khaleel Jordan Policies
Khaleel Jordan PoliciesKhaleel Jordan Policies
Khaleel Jordan Policies
 
Foundation of patent law
Foundation of patent lawFoundation of patent law
Foundation of patent law
 
Intellectual Property Rights
Intellectual Property Rights Intellectual Property Rights
Intellectual Property Rights
 
Intellectual property ats
Intellectual property atsIntellectual property ats
Intellectual property ats
 
Intellectual property rights lecture.it contain general introduction, meaning...
Intellectual property rights lecture.it contain general introduction, meaning...Intellectual property rights lecture.it contain general introduction, meaning...
Intellectual property rights lecture.it contain general introduction, meaning...
 
Intellectual Property and Trade Mark
Intellectual Property and Trade MarkIntellectual Property and Trade Mark
Intellectual Property and Trade Mark
 

More from Dannie Jost

Bananas Pineapples and Mangos
Bananas Pineapples and MangosBananas Pineapples and Mangos
Bananas Pineapples and Mangos
Dannie Jost
 
Human Body Mind Spirit (5 minutes)
Human Body Mind Spirit (5 minutes)Human Body Mind Spirit (5 minutes)
Human Body Mind Spirit (5 minutes)
Dannie Jost
 
Theoretical Man At Reboot 9
Theoretical Man At Reboot 9Theoretical Man At Reboot 9
Theoretical Man At Reboot 9
Dannie Jost
 
KNOWLEDGE ownership
KNOWLEDGE ownershipKNOWLEDGE ownership
KNOWLEDGE ownership
Dannie Jost
 
to blog or not to blog
to blog or not to blogto blog or not to blog
to blog or not to blog
Dannie Jost
 
a very unsexy subject
a very unsexy subjecta very unsexy subject
a very unsexy subject
Dannie Jost
 

More from Dannie Jost (6)

Bananas Pineapples and Mangos
Bananas Pineapples and MangosBananas Pineapples and Mangos
Bananas Pineapples and Mangos
 
Human Body Mind Spirit (5 minutes)
Human Body Mind Spirit (5 minutes)Human Body Mind Spirit (5 minutes)
Human Body Mind Spirit (5 minutes)
 
Theoretical Man At Reboot 9
Theoretical Man At Reboot 9Theoretical Man At Reboot 9
Theoretical Man At Reboot 9
 
KNOWLEDGE ownership
KNOWLEDGE ownershipKNOWLEDGE ownership
KNOWLEDGE ownership
 
to blog or not to blog
to blog or not to blogto blog or not to blog
to blog or not to blog
 
a very unsexy subject
a very unsexy subjecta very unsexy subject
a very unsexy subject
 

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

  1. The EU four freedoms
  2. Simple until you think about it a bit more.
  3. EmergenceBottom upTop downWho will win?Balance
  4. Paradigm shifts are the evergreens in social evolution
  5. 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)
  6. 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)
  7. 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
  8. 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.
  9. 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.
  10. 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.
  11. GATT was signed in 1947 and lasted until 1993, when it was replaced by the WTO in 1995
  12. 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.
  13. Only of interest for those working in biotechnology and renewable energy, biomass, etc.
  14. So, where do we start