I Need Help: Patent 101?

Started by MattTuck, 10-27-15 at 08:19 PM

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MattTuck

So I've invented a new piece of hardware, and the software to complement it, where do I go next? It is my intent however, to keep the tech open-sourced while protecting my rights to it. I should also probably note, since I don't know if it will have any affect on the patent process, I am using a Raspberry Pi at the heart of this project.

Advice? Experience? Suggestions?

MYK

Install Gentoo!

If you're open-sourcing everything, then what rights are you trying to protect?  You certainly can patent something and still open-source the code, but it's kind of pointless unless you want to block others from making different implementations.  A patent is just a right to stop others from making/using/selling your invention.

If you've got something awesomely new and innovative and you want to prevent Microsoft from copying it, then a patent is the right thing to get.
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

JimIvey

Quote from: MYK on 10-28-15 at 08:47 AM
If you're open-sourcing everything, then what rights are you trying to protect?  You certainly can patent something and still open-source the code, but it's kind of pointless unless you want to block others from making different implementations.  A patent is just a right to stop others from making/using/selling your invention.

It's been a while since I've looked into the intersection between open source and licensing, but here's what I recall.

Open source leverages copyright to protect the openness.  You're allowed free use of the open source software as long as you send your modifications upstream and license any derivative works under the same terms.  If you don't, you could be infringing copyright of the open source software.

For the longest time, open source licenses didn't handle patents well, if at all.  So, following the terms of the open source license wouldn't (and still doesn't) protect you from patent liability.  More recently, OS licenses have been including some sort of patent poison pill.  If you get a patent on your OS contribution or assert a patent on your OS contribution (perhaps against anybody or perhaps only against non-OS infringers), you OS license is void.  That only means that you could be liable for copyright infringement if you (or your users) continue to use the OS software.

I've never heard of anyone actually being sued for unauthorized use of OS software.  Though, I have heard that a lot of companies worry about it and monitor their source code for OS fragments.  The solution would be to replace the OS components of your software with commercially licensed (or re-developed) components.  Many OS products can be licensed commercially, so you might not even have to redo your software at all, just pay for it.

Quote from: MYK on 10-28-15 at 08:47 AM
If you've got something awesomely new and innovative and you want to prevent Microsoft from copying it, then a patent is the right thing to get.

True.

Regards.
--
James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
Friends don't let friends file provisional patent applications.



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