The Politest Patent Discussion, OSHW v. Patents

We’ve covered [Vijay] refreshable braille display before. Reader, [zakqwy] pointed us to an interesting event that occured in the discussion of its Hackaday.io project page.

[Vijay] was inspired by the work of [Paul D’souza], who he met at Makerfaire Bangalore. [Paul] came up with a way to make a refreshable braille display using small pager motors. [Vijay] saw the light, and also felt that he could make the vibrating motor display in such a way that anyone could make it for themselves at a low cost.

Of course, [Paul], had patented his work, and in this case rightly so. As jaded as we have become with insane patent trolls, our expectation on receiving the tip was that [Paul] had sued [Vijay] out of house and home and kicked his dog while he was at it. A short google search shows that [Paul] is no patent troll, and is a leader in his field. He has done a lot to help the visually impaired with his research and inventions.

Instead we were greeted by a completely different conversation. [Paul] politely mentioned that his lawyer informed him that in order to protect his IP he needed to let [Vijay] know exactly how the information could be used. No cease and desist, in fact he encouraged [Vijay] to continue his open research as long as he made it clear that the methods described could not be used to make a marketable product without infringing on [Paul]’s patents. They’d need to get in touch with [Paul] and work something out before doing such.

[Vijay] responded very well to this information. His original goal was to produce a cheap braille display that could be made and sold by anyone. However, he did use [Paul]’s work as a basis for his variation. Since [Paul]’s commercial interests relied on his patent, there was a clear conflict, and it became obvious to [Vijay] that if he wanted to meet his goal he’d have to pick a new direction. So, he released his old designs as Creative Commons, since the CERN license he was using was invalidated by [Paul]’s patent. He made it very clear that anyone basing their work off those designs would have to get in touch with [Paul]. Undaunted by this, and still passionate about the project, [Vijay] has decided to start from scratch and see if he can invent an entirely new, unprotected mechanism.

Yes, the patent system is actually encouraging innovation by documenting prior work while protecting commercial and time investments of beneficial inventors. Well. That’s unexpected.

Kudos to [Paul] for encouraging the exploration of home hackers rather than playing the part of the evil patent owner we’ve all come to expect from these stories. Also [Vijay], for acting maturely to [Paul]’s polite request and not ceasing his work.

26 thoughts on “The Politest Patent Discussion, OSHW v. Patents

  1. That still doesn’t forbids commercialization if Paul and Vijay can come up with an agreement.
    Open source by the other way can be used by Vijay to show improvements over Paul system without worrying it will be patented.
    Sincerely I think blind people will see when such patents will expire, 2000 dollars for a 80 cells system is a bit expensive.

  2. May I ask a question related to the Assistive technology Hackaday Prize, is it possible to already start creating and publishing the Hackaday.io page about the project I would like to submit, or do I have to wait until the 22 August when it starts? Thanks!

  3. Unfortunately, the first-to-register system opens opportunities for unscrupulous use of public Haptic designs published in papers. Paul’s claim section would have to specifically cover the actuator section, or could be counter-sued for filing frivolous lawsuits (trolls/bullies tend to avoid actual courts). Note, even if the patent mentions iPhones and Toilet-paper — only the claim section will be legally enforceable in most areas. Indeed, many regions of Europe will reject patents with more than 15 claims for this reason.

    The primary issue with innovators is often they begin generalizing their intents with faulty recollection of the scope of the original approved project claims from the past. A patent’s filing date will set the denotive meaning of the included language, and thus may be unenforcible even if they remember a similar design description matching their work.

    Note this patent was filed prior to the first-to-invent cut off period in early 2015, so anyone could point to the prior art and apply to get the patent expunged for $1400 USD. I recall seeing the design before the filing date published by some Japanese grad students, and certainly may be able to get the patent expunged if the original designers are not listed on the Patent with him.

    Note, our corporate policy is to respond in full force, or roll-over if the extortion-cost is lower than the legal insurance deductibles. Its normal in business practice, and it is a tax write off to counter sue for losses…

    Please post Paul D’souza cited USPTO number, and we’ll have legal look at the reviewing examiners final version of the claim section. Paul may be a nice person, but we may simply get it expunged anyway due to violating the alumni academic conduct rules.

    We like Vijay’s work, and recommend he open a dialogue with the local advocacy groups with legal programs.
    Note, printing a unit for your own use or evaluation purposes also falls under fair-use protection in most areas.

    1. Why waste time trying to invalidate what is most likely a proper innovation instead of trying to come up with something better instead? We aren’t taking about a patent troll trying to make money of a ridiculously obvious design…

      When I say better remember that while easily obtainable vibration motors are larger than necessary which means mechanical complications, larger footprint than necessary and control problems (unless other mechanical complications are added). Rotational vibration motors aren’t bistable, aren’t designed for linear actuation etc.

      One idea: what about a wax (linear) motor? It would be trivial to make a functional device with a heating coil per “pixel” but that wouldn’t be too energy efficient (as one of the states require heating). It should be possible to make a truly bistable device that only requires power when changing states.

      1. > Why waste time trying to invalidate what is most likely a proper innovation instead of trying to come up with something better instead?

        Because that something better is rarely completely different, and it’s often much more productive to work on improving the existing solution, than artificially try to come up with a contorted design that happens to wiggle between the existing patents.

    2. The interesting part is that if Paul hasn’t filed the patent in the rest of the world that use “first to file” system, he might have lost the chance. The first publication/disclosure would now be a prior art.

    3. This patent was filed in India under India’s patent laws. I do not think that anyone in India will ‘bite’ when they could get me to pull my own invention for free. Al they need to do is to cite precedent.

          1. I’m sorry, but it appears to me that you’ve not read the article or supporting materials properly. I don’t want to argue with you until we’ve verified that you’ve taken that step. Could you please elaborate on how you arrived at any of these conclusions using the information proffered?

        1. Thanks Gerrit for putting the right perspective back into this discussion. Someone else included a link (in the comments) that better explains why I was asked to do what I did …I am reproducing it here… http://www.ipwatchdog.com/2015/03/01/notice-letters-and-licensing-communications-are-an-important-part-of-the-u-s-patent-system/id=55278/

          I recognized the LOL guy immediately, he cited all the grounds for expunging my patent – including the Japanese students work that I had plagiarized, without even knowing where this patent was filed and what it actually claimed!

          1. Paul, you are correct if and only if your patent was filed within your domestic area prior to publication in the filing grace period for international WIPO countries which include the USPTO. We protect people like yourself, and want to ensure that the design drawings do not match other peoples work intended for public domain academia. Note that your IP may only be valid within your own country, and if it was unique than there should be no issues.

            We have successfully filed several international patents over the years, maintain our IP, and know India has such a terrible reputation for IP law that we prefer to spend our money on bonuses. Admittedly, you would be the first person I’ve ever talked with that successfully accomplished anything in an India court system without bribery.

            I simply asked for the filing number, and was surprised people tried to turn this issue into some sort of personal straw-man argument. Note, I have no character to defame….

  4. OSHW is a con. “Let me see your great idea, open source like, so I can copy it verbatim and then turn a profit off of it, you know, for the children…” A certain country loves OSHW. Jeep sends a design over there to see about having it built in the cheap labor, no environmental regulation way of doing things, not expecting to make any yet, come back a year later and the streets are filled with the things… Keep your good ideas to yourself. Even if you don’t plan on ever producing actual products yourself. If it’s such a good idea, someone else will come up with it and you’ll lose out anyway. You put a patent on it and someone tries that shit “for the children” – you win.

    1. If and only if the cost of filing a legal motion, getting a company specific import ban, and enforcing it for shipment specific wholesale is effective.
      In general, a patent is only useful if you can afford to enforce the court authorized actions. Notably, most busted China cloners will simply sell the company assets to another legal entity, close the business, and reopen with the identical people down the street. Even if you live there, you will never see any economic justice from communist legal systems unless you are government owned. The concepts of individual ownership and IP are different in that country. See the countless hoverboard variants for further details…

      OSHW is only a “con” if the buyers don’t support the original authors for some reason. We buy crowd funded equipment all the time, but admittedly can’t determine how a viable business can coexist in such an environment unless the product is sufficiently difficult to manufacture on cloner lines.

      The ecosystem of USA/China Middlemen businesses are a joke, and the illusion that being educated infers you don’t have to work is the punchline — as many lost the practical domestic engineering resources to make that conscious choice.
      When we opened another US factory a few years back, the city zoning people had trouble classifying our company as the last hardware business they licensed with our code went bankrupt in the late 1990’s.
      I was literally speechless…

      1. >OSHW is only a “con” if the buyers don’t support the original authors for some reason.

        If you’re expecting people just to buy your invention from you, what’s the POINT of open-sourcing it?

        People make money from software too, but release open-source to benefit mankind and software generally. That’s the point of OS. You’re not SUPPOSED to make a profit. It’s supposed to create a community who freely work to improve your technology, so the world, including you, can have it. Sure you can make SOME money but the idea of a monopoly, enforced through some sort of guilt or moral right of inventing it, isn’t really part of it. It’s a bad idea if you want to make money from it. Of course you can invent something closed-source and still fail in business. Maybe try that first, and then if the business fails give the IP away so at least something can come of it.

        1. Indeed, not every individual can choose to support the authors — but we do.

          “You’re not SUPPOSED to make a profit.”
          Don’t generalize your personal beliefs, as we fund numerous science/education/student projects for many reasons. There are countless little groups we purchase stuff from or donate towards, and only get irritated if other people borrow these people’s stuff without permission.

          We pay people well, support them building their own businesses, and always licence our projects BSD/LGPL/Apache. We want others to be able to sell something based on our work, and buy time to create things we never thought could exist. We think the idealism of the bottom-feeder economy is interesting, but rather support helpful people as it improves the community in the long term.

          People who just file patents, demand license fees, and don’t contribute anything to the community — are not on the “nice” list, and generally classified as bums-in-suits.

    2. The system is stacked against OSHW. Hardware development takes capital (and time). It is unlike software that anyone with a compiler can make their own copy. There is a setup charge/inventory cost etc for production that not everyone can afford or have the skills to manage. All designs are not equal as some would be optimized towards a particular contract manufacturer. So to ake hardware, you would likely need investors.

      If you want angel investors, they would want to see patents. They would not want someone else to make what they *fund* you to make. If you wish to apply for a patent, your lawyer would tell you to hold off publication of your idea until it is filed.

      I don’t like the terms of OSHW specifically. I would rather license my open source design for non-commercial use. That way the individual who want to tinker can still do and I still have some control to recoup my cost.

  5. “[Paul] politely mentioned that his lawyer informed him that in order to protect his IP he needed to let [Vijay] know exactly how the information could be used.”

    This is a bit vaguely worded, but to be clear, you do not need to enforce patents in order to protect your ownership of them. You can own a patent, not enforce it for years, and then suddenly decide to start enforcing it.

    In this case, I think it was fair of the patent holder to inform the person infringing upon the patents that, while he does not immediately plan to enforce the patent in this specific case, he does own that patent, and will enforce it if people start making money. This allows the person infringing upon that patent to find an alternative solution that avoids infringing the patent (which seems to be happening now).

    1. johnyoo> “You don’t need to enforce patents to protect them.”

      Patent attorneys say otherwise:
      http://www.ipwatchdog.com/2015/03/01/notice-letters-and-licensing-communications-are-an-important-part-of-the-u-s-patent-system/id=55278/
      That article sums up this situation and includes some of what you said quite well.

      Cerrit Goatzee>
      “Since [Paul]’s commercial interests relied on his patent, there was a clear conflict, and it became obvious to [Vijay] that if he wanted to meet his goal he’d have to pick a new direction.”

      This isn’t a conflict, it’s an opportunity. The patent holder can simply license it to Vijay. Done. IMHO it appears Vijay either didn’t want to commercially sell these things, or just didn’t want to give Paul a cut.

      hehe CERN License for hardware.

      Cute.

      An OSHW license reminds me of little kids when they get bossy.

      “It’s illegal to tell me what to do because I’m five years old now!”

      1. I know trademarks have to be viciously protected, or else they can fall into public use. Didn’t know it applied to patents as well. Certainly copyright is ironclad, you get that pretty much forever, or at least for the lifetime of the Disney corporation + 70 years. Every bloody time Mickey Mouse cartoons look like they’ll enter the public domain, out come the lawmakers.

        1. It really doesn’t apply to patents but it is a bit more complicated than that. One example would be if a large company suddenly started manufacturing devices that are covered by your patent and you don’t do anything (even though you know of the violation) but then some smaller companies start doing the same and you sue them. The court is likely to find that strange. Another example is if you knowingly let people use something that is covered by the patent until it is established as a standard and only then start to sue. Both of those (and some other) cases can make it harder to convince the court your rights are violated.

          But that doesn’t mean that patents are automatically invalidated without enforcement.

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