Tuesday, December 28, 2010

copyright and patent

It was recently blogged about US law and 3d printing, after reading the entire paper I had two questions, both of which i emailed the writer, hopefully I will get a response soon. Those questions were about copyright vs patent in the law. specifically if someone posted a design somewhere i.e.thingiverse and then later a company filed for a patent for the same device, and received the patent, would it supersede the copyright or would the posting of the device automatically invalidate the patent due to not being unique or original.

After pondering this for a bit something else came to me, the copyright's that are put on things in thingiverse are (other than as a record) worthless, they have no real meaning since copyright cannot and should not be applied to physical objects, and we as makers do NOT want to change that.
think about what it would do. right now a patent has a very short shelf life of about 12 years (i believe though for some reason 7 seems to come to mind) but a copyright is life plus 90 years or so!!!!

companies have been trying to get patent length extended for years and they have also tried to apply copyright law to patentable objects, so far thankfully none of these have panned out for them.

now, this doesn't mean that i think people should stop posting things or putting a gpl license on them, on the contrary, if i understand patent law then we need to post MORE things, the more we can prove non patentable the better. But also note. once something is posted it cant be patented ever, even by the original poster.
years ago back when i was a kid my uncle made a gold panning device, he made the mistake of selling a few of them before he patented it. results: patent rejected, item already exists for sale.

now, I have no references to quote and IANAL and neither do i play one on TV so don't take any of this as legal advice. not that any of it was actually intended as advice, just as a HMM moment.

1 comment:

  1. Interesting questions. Let's sort out a few things. 1) patent term = 20 years from date of filing. 2) copyright and patent deal with different things, so one does not supersede the other, but these may make claims on different parts of some thing (like an object). 3) in the US an inventor has a year to file a patent application after public disclosure, public use, or offer for sale, so posting a design does not mean no patent is available. Most non-US jurisdictions do require filing an application before publication. 4)it is copyright term that has been repeatedly extended. Patent term was 17 years from date of issue and that has been changed to 20 years from date of filing--the result is generally to reduce the term of patenting because previously an application could be held up in the US Patent office for years by the inventor before issuing, resulting it what is called a "submarine" patent. 5) while copyright does not cover utilitarian things, it does cover expression placed on these things, so a decorative lamp base may carry copyright in the decoration though the base itself is not a matter of expression and therefore has no copyright interest. A lamp base made from a sculpture, however, would carry copyright.

    That said, creating maker design and production commons is vital to the advancement of 3d printing. Too many IP positions will make it impossible to develop except along monopoly controlled pathways.

    But also it will be important that the maker community also take IP positions to shape future development. The GPL depends on copyright to enforce limitations on copyright claims in derivative works (adaptations and the like). Holding patent rights may be essential to create a standard and gain access (through cross-licensing) to proprietary stuff that otherwise would not be offered. Finally, the 3d print community needs to develop its own markets of exchange--and that may require celebrating (and respecting) the investments of folks who provide real value to the community. It's not all or nothing, but when and where and how much.

    Copyrights on stuff in Thingaverse may well have value. Don't discount it based only on the idea that some parts of an object are utilitarian. Like Flickr, the important thing is what the IP holder permits. We need a Creative Commons for maker assets--designs, images, stl and other control files (copyrights), materials, and print production devices and methods (patents)--so everyone can communicate clearly what they've got and how they are contributing (or not).