Avoiding being sued for patent infringement

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The problem is…

Avoiding the possibility or merely the fear of being sued for patent infringement can be a barrier for creatives. This may be because they did not know that key technology was patented or that the IP is not open and they have not the financial means to license the technology.

The proposed solution might apply when

in the process of design one can consider existing, openly published designs or solutions and, adapt or build on top of them.

The solution proposed is…

To check the available existing designs in open design platforms and adapt those designs for one's needs. If one creates a fully new design, that cannot be linked to any existing design (which is really hard generally), then make sure to publish it in such platform so that it becomes "prior art" and no one should be able to patent it. This is called a Defensive Publication.

The expected outcome is…

a growing body of open (source) designs that cannot be patented - or should not be able to be patented, as they constitute "prior art".

Other information

Rationale

Patents may have been created to help encourage innovation, but instead they regularly hinder it. The US Patent Office, overwhelmed and underfunded, issues questionable patents every day. “Patent trolls” buy too many of these patents and then misuse the patent system to shake down companies big and small. Others still use patents to limit competition and impede access to new knowledge, tools, or other innovations. It’s no wonder that small businesses and individual inventors find it almost impossible to make the patent system work in their favour, often leaving them without any defense against competitors with giant patent arsenals and litigation budgets (EFF about patents). Searching patent databases to check whether patents on one's idea or design exist is typically very hard, not the least due to the intentionally vague wordings of those patents, as the patent attorneys seek to maximise the possibilities of using their patent. Prior art in most systems of patent law, is constituted by all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality. If an invention has been described in the prior art, a patent on that invention is not valid. There are also patent pools, where patent holders pool their patents together to avoid legal attacks and protect their openly shared work. The Open Invention Network is such a defensive patent pool and community of patent non-aggression which enables freedom of action in the GNU/Linux ecosystem. Defensive publication , which are endorsed by the USPTO as an IP rights management tool, are documents that provide descriptions and artwork of a product, device or method so that it enters the public domain and becomes prior art.

Significant influencing factors

  • the patent system is not effective for most individual designers or small and medium sized companies
  • sharing designs collaboratively through open design platforms permits to foreclose the possibility of patenting

Evidence/Examples

  • The Open Business Model cases studies of the Digital DIY project have documented 14 cases of open source hardware technologies that demonstrate how viable economy ecosystems can thrive without patenting and with sharing knowledge openly and freely.

Related Patterns

Use Design Sharing Platforms

Links to further resources

Authors and Credits

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