Patent Law And The Legality Of Making Something Similar

When [Erich Styger] recently got featured on Hackaday with his meta-clock project, he probably was not expecting to get featured again so soon, this time regarding a copyright claim on the ‘meta-clock’ design. This particular case ended with [Erich] removing the original blog article and associated PCB design files, leaving just the summaries, such as the original Hackaday article on the project.

Obviously, this raises the question of whether any of this is correct; if one sees a clock design, or other mechanisms that appeals and tries to replicate its looks and functioning in some fashion, is this automatically a breach of copyright? In the case of [Erich]’s project, one could argue that at first glance both devices look remarkably similar. One might also argue that this is rather unavoidable, considering the uncomplicated design of the original.

Not copyright, but patent law

An inherent property of copyright law in most jurisdictions is that the act of creating a work automatically grants one the copyright to that work. In most jurisdictions (e.g. the EU), signing away one’s copyright is even forbidden by law. Not so with patent law. Here we have two distinct forms, one being patents as we all know and love them, for the patenting of ideas and inventions. The other form concerns itself with what a product looks like: its design.

In the US this is referred to as a ‘design patent‘, while elsewhere it is referred to as a ‘registered design’, which effectively comes down to the same thing. It means that one can patent for example the shape of a Coca-Cola bottle, or in the case of the folk at Humans Since 1982 (‘HS1982’) the look of their meta-clocks, in not one, but two EU registered designs.

Comparative analysis

We can compare the two designs side by side to see how similar they are.

The top design is [Erich]’s, while the lower design is HS1982’s clock (black version). Both have the same 8×3 hole pattern, similar color scheme, and so on. That the HS1982’s version is in a mineral composite housing and [Erich]’s in a wooden enclosure is hereby not relevant as it does not change the design. To the casual observer it might indeed appear as if both follow the same design.

Since design registrations are meant to deter companies from for example selling their own soft drink in a bottle that looks exactly like a Coca-Cola one, down to the label design, it makes sense that HS1982 came down on [Erich] and others with similar clock designs like the proverbial sack of bricks.

Naturally, the next question which one should ask here is whether it makes any difference that this was a freely available, open project. Meaning that there was no intention to sell such clocks, or even provide all of the necessary information to assemble a clock from scratch, including the software.

Consistency is key

Although with patents and design registrations there is no need to actively pursue infringement cases to keep the patent as is the case with trademarks, it’s likely that to HS1982 there was no question of tolerating any form of infringement. Their audience appears to be those interested in exclusive art pieces, with the device described by them as ‘both a kinetic sculpture and a functioning clock’.

The manufacturing costs of a single ClockClock24 device is unlikely to be even half the asking price of $6,000 to $10,700, even taking into the account that each version is a limited edition. Yet this asking price remains only ‘legitimate’ if the product remains as exclusive as possible. This provides HS1982 with enough incentive to actively seek out and destroy any similar products. In the end we are talking about sculptures, i.e. art, here.

This isn’t just like one smartphone manufacturer accusing the other manufacturer of also making their smartphone into a black, rounded rectangular slab with glass covering. The ironic thing is probably that any number of small changes to [Erich]’s project could likely have made the registered design not apply, such as through the addition of a colon between the hours and minutes, adding seconds, making the box into an oval, or changing the number of rotating elements.

Not all is lost

As [Erich] also notes in his blog post, there are still certain ‘fair use’ provisions with registered designs. Nobody is going to bust down the doors of a kindergarten when one of the preschoolers clumsily draws a Coca-Cola bottle without explicit permission from Coca-Cola’s lawyers. Similarly, anyone can in theory make their own copy of HS1982’s ClockClock24 clock so long as they do not sell it or otherwise make it publicly available.

This knowledge should give anyone who sets out to copy a design which they saw somewhere and liked at least some idea of how far they can take it. Publishing the project on a blog and making the design files available is the part where things can get dicey. Even making small alterations to the original design are not guaranteed to keep one from getting harassed by a company’s irate lawyers.

While there is a small chance of victory if [Erich] or someone else were to take a case like this to court, to argue that small-fry open-hardware projects are unlikely to harm the profits or sales of a company like HS1982, it would essentially be asking the law makers to add a major exception to patent law that would no doubt come with its own set of headaches.

In the meantime it seems that we can do little but get a chuckle out of the ClockClock24 clones available on Chinese stores for peanuts.

57 thoughts on “Patent Law And The Legality Of Making Something Similar

  1. “Similarly, anyone can in theory make their own copy of HS1982’s ClockClock24 clock so long as they do not sell it or otherwise make it publicly available.”

    This right here. Take down any files for sale (PCB’s etc) and leave the rest up and tell them to go pound sand.

      1. You can always tell when someone has never been involved in a lawsuit – they’re the ones always throwing out “Yea, I’ll see you in court” over issues with little to no money involved.

    1. Yes, very badly written article that muddles three completely unrelated intellectual property types.

      COPYRIGHT protects ‘artistic works’ that means music, literature, movies, plays, photos, sculpture and illustrations. It could be argued that this clock I a form of sculpture but it would be on very thin ice if challenged in a court on the grounds of copyright. First it would require that it quality as an artwork rather than a functional device, machines like clocks are not protected by copyright. Second there is a requirement to prove financial loss in order to claim damages, it is a civil matter not criminal.

      REGISTERED DESIGN could be used to protect this as it is a distinctive way of presenting a clock. But to gain such protection the design would have to first be registered. If it is registered (something I doubt without evidence) then I would say that Erich Styger’s version is sufficiently similar to warrant a claim of registered design infringement. As this is a personal project that is not being sold there is no stopping someone making their own as no evidence of harm can be provided.

      PATENT requires that there is a novel invention, this may qualify for patent protection if it has been registered but I doubt it would pass as unique enough to patent.

      I don’t think Maya is sufficiently qualified to be writing about legal issues.

      1. “If it is registered (something I doubt without evidence)”

        There are links provided to the registrations (circa 2014)

        The term design patent is used in the USA. unlike the rest of the world.

        “As this is a personal project that is not being sold there is no stopping someone making their own as no evidence of harm can be provided.”

        Pretty much anywhere in the world, except the USA. The rules in the USA are very, very protectionist, and, in theory, action can be taken for making a copy for ones own use, never publicly or privately shown, just for existing. This, obviously, could never happen if the item is unknown to all others than the creator, and it is rare for such action to happen when these are known, but they do happen.

        1. The USA has Utility Patents and Design Patents. Utility patents are hard to get because they’re for things that are entirely new.

          For example if wheelbarrows didn’t exist then someone invented and patented the wheelbarrow that person could apply for and be granted a Utility patent for wheelbarrows. All other makers of devices for hauling loads with one front wheel (or two closely spaced front wheels), a cargo bin, and a pair of handles that run the full length and support both the wheel axle and the cargo bin would have to pay license fees to the patent holder until the patent expired.

          Philo T. Farnsworth was eventually awarded a utility patent for electronic television but due to the underhanded actions of RCA wasn’t able to get license fees for its full term.

          Back to wheelbarrows there was a time when the USPTO screwed up. An inventor designed curved, pivoting handles to attach to the ends of the standard straight wheelbarrow handles. The object of the invention was to maintain control of a wheelbarrow while dumping it. With his invention one didn’t have to shift their grip from above to below the handles in order to tip the wheelbarrow upright on its front.

          The USPTO accidentally issued him a Utility patent for the wheelbarrow, rather than a Design patent for his handles. The article I read included pictures of the patent documents. The inventor contacted the USPTO to inform them of their error, which they eventually got around to correcting.

          The handles looked like a neat idea but I’ve never seen anything like them on any wheelbarrow.

          With as much stuff as has been invented and patented, it’s increasingly difficult to come up with something truly never seen before, and as the number of patents increase, ever harder to dig through the old stuff to find out if your “Absolutely new and unique.” idea really is, or of someone already thought of it 50 years ago.

  2. “It would be a valid concern if I would have made it available for sale or provided a kit (which was not the case), even not the software.”

    Isn’t it how one would get fame quickly these days? That’s worth a lot to drive traffic to your site or maker lab or other business, YouTube channel? Leverage other’s work. Don’t even need to bother with changing designs, a proper kit to sell, etc. Post the code as open source, STL files for free, people will thank you and will probably check out other stuff what You have to offer.

    Not true?

    1. Erich should make a single-clock pcb module available. It’s left as an exercise for the reader to assemble 24 of the modules into a design-infringing clock, or not.

  3. The thing about working around a design legal issue is its usually so EASY to avoid.

    Took me mere minutes to figure out the solution is a 3-hand clock, not 2-hand, and make the long “seconds” hand the color of the background, then arrange the little clocks in a classic 1980s 5×7 matrix so as to display any alphanumeric text not just numbers. Make the colors different from the original art installation, too.

    Or another funny idea… stack up 7-segment LEDs into an array and use them like matrix of simple LEDs. Turn a large matrix of little four digit LED clocks into one giant LED clock. Thats actually kinda funny. What if each “pixel” of lit little clocks were displaying a different random timezone as a performance art thingie?

    Funny idea… stick a boat load of glass sand timers on rotating LEDs and make an analog or digital clock out of the large matrix of sand timers… funny!

    Either idea provides a cooler project than the original design-protected clock and my extended ideas design and operation are nothing like the original although it re implements the un copyright able idea of using a grid of little clocks to make a big clock.

  4. >While there is a small chance of victory if [Erich] or someone else were to take a case like this to court

    Only if the said person have IP lawyer already on lawyers on retainer. Depending on where you are, some court system have a loser paid system where the loser have to pay all or part of the winner’s legal fees.

    The legal fee and potential liability is a big stick for the rich to do what they want.

  5. This is a lesson for hackers to think before making look alike to existing IP own by big corporations. There are a lot of these copycat with iconic gadgets or character from popular media like movies, TV, comicbook, anime etc . It might be cool, but the lawyers might not agree as it “dilutes” their IP.

    1. That’s a fair comment, _but_:

      What if Erich has never been to Changi Airport between 2014 and 2018 and seen the design? Or found the magic search engine term (which I couldn’t in the course of several minutes, and my DDG-fu is strong)? How many times have you thought, “wouldn’t it be great if someone made a …” only to see one in a store 6 months later?

      I do not at all mean this an attack on you, just some points to ponder. Part of protecting one’s IP comes with proof of intent on the part of so-called infringers.

        1. Like a lot of the things one do as an engineer or any fields that have some liability, you want to show a paper trail.

          If he had documented it showing where exactly the idea came from.

          e.g. travel record that he has never been to Changi, then it would show that he didn’t infringe the design knowingly.

          e.g. A blog picture showing the grid of clock on the wall at the local shopping mall and this bubble 7 segment display, so I said to myself why not combine the two?

          Seeing that his “new” art idea tells me that he is still asking for legal trouble.
          https://mcuoneclipse.com/2020/06/07/behind-the-canvas-making-of-60-billion-lights/

        2. BTW I did have an encounter with the IP lawyer at work when a competitor filed a patent on something I have done. I was able to show our lawyer that I saw the idea documented in an app. note that was 6 months before the filed date. I show him the claim part of the patent and how it was explicitly covered in the app. note. i.e. someone that has the skill in the trade can come up with the idea independently.

          The lawyer walked away happy and asked me if I am interest in IP work. (My manager couldn’t even understand the difference between a copyright and a patent.)

  6. BTW I usually have a non-commercial clause in my “open source” for any projects that have some values. It would partly cover me if someone knock off my design and get me into patent/registered design problem as I am a victim too.

    Before the usual hate messages: What I choose as my license is my personal freedom as I am the one that did all the work, but might get the short end of the stick if I don’t restrict the usage.

      1. Lot of people misuse the term Open Source for Open Standards among other things. Unless the term is trademarked and actively defended by the rights holder, the term has became a common day term.

        I see no one have the rights to stop me from using it.

        1. No-one has the right to stop you hanging very offensive flags and messages in your windows either, but it’s still a fairly dick thing to do. A lot of society runs on people doing the right thing because it’s the right thing to do, not because its illegal not to.

        2. No more worse than the people that harass others who have done the design for their project to “open source” it when the authors have their right to license it whatever they choose.

          It is also wrong that others have been making their source code available (probably like from the free movement 60’s) and all of a sudden some organization comes in posting up fences around a free area and proclaim that no one else is supposed to use the term Open Source but them and they have very straight rules. They are only only true owner of the concept and they speak for everyone else.

          Yes, I have a lot of issues with Open Source hardware to the point I have actively not use or support it in any shape of form. After all it is freedom. The freedom to choose my licensing term and freedom to call something that is not legally claimed. I have a lot of issues with people bullying.

    1. Should that actually protect you in this case or similar? (I assume it would be depending on local law and loopholes)

      I believe all common open-source licenses have a liability clause.

      I assume this argument is basically; that his design violates their IP, and therefore, he does not own it (the IP) to be able to legally (re)license it in the first place.

      If I posted a project that violates a patent or other IP, but is licensed non-commercial, would I still get sued? Yes, because I don’t own it, so, I can’t legally license it, regardless of the license I use.

      NOTE: I respect your right to license your work with whatever license you want.

      I’m not a legal expert (or even a legal noob), I was just question the reasoning you provided, since I’m genuinely interested in if it would actually be a protection.

        1. Interesting, I was aware of the ability to sue the other party (regardless of if you are sued first or not) but then you have another lawsuit to deal with.

          In the “I didn’t mean to” defense, it seems that it would keep you from suffering additional/larger damages, where a non-commercial license could help support that stance (probably).

          That sounds like a really good reason for using that clause, but, it seems only a good reason if there is reasonable chance you are infringing on another’s IP. (There are plenty of other reasons to use a NC license).

          However, if you even acknowledge that it is a DIY version of a commercial product, you probably just dug a hole too big to get out of.

          Your other comment: yes, you still own your own IP, which you can license however you wish, so long as you have removed/excluded all the other entity’s IP. I think that the clock could share everything and all pictures if they just removed the black square faceplate to only show the internals. (Based on the description from the article about the IP in question).

          1. I remember the driving school said:The first rule of defense driving is never get into an accident.

            If I am already being sue by a big corporation and in the likelihood that I’ll be bankrupt anyway by legal fees, then I have nothing to lose either. -$10 millions or -$50 millions make no difference.

            I have read enough story on HaD about authors regretting their unrestricted license as they found someone using their IP for some non-ethical, military or authoritarian purpose . They can’t do anything about it as they have given away their rights. i.e. the author(s) don’t have a say on who and what purpose when that said organization under a “unrestricted” licensing.

            Hey at least a “tell me what you want to do with it and let me okay it first” option would be nice.

      1. I don’t do copycat stuff like a lot of HaD project that uses pop culture props as I consider it to be boring.

        Most if not all of my work have some new idea(s) I own. So I would own some IP and have rights on the restrict distribution on my part of the project .e.g may it be the text comments on my source code or the way I wiggle the traces in my hand layout.

  7. “In most jurisdictions (e.g. the EU), signing away one’s copyright is even forbidden by law.” – this seems to be an incorrect generalization.

    There are limits in several countries that prohibit signing away moral rights to a copyright but they do not generally prohibit assigning copyrights. In most countries you can freely assign a copyright. In a significant number of countries where moral rights do exist (moral rights are not generally applicable in the United States) they can be waived.

    1. I know at least one car model that uses them for the clock (overcomplicating, but whatever) and another for 2-in-1 gauges with a long and a short pointer.
      Can’t remember them but they were the “Chique” types so probably Italian, French or a BMW MINI.

      1. I have to check on my car, I believe the clock has a reduction for the hours, so it’s only one stepper for the minutes’ hand. It was fun setting it a few hours away and watch the hands fly.

    2. I have in a few cases, though the shafts have all been hidden giving the appearance of two independent units. Think fuel and temp needles in the same cluster section.

      No clue how common it is

  8. “Yet this asking price remains only ‘legitimate’ if the product remains as exclusive as possible.”

    Artificial scarcity is the scourge of the earth and should be circumvented whenever possible.

    Anyone seeking status, standing or a feeling of self-worth conditional on the goods they’re hoarding being artificially scarce (“exclusive”) should be ridiculed.

    We could all live better and more comfortable life if artificial scarcity and the culture of artificial scarcity based status seeking was abolished.

      1. I’d wager its the principle of things.
        Artificial scarcity leads to artificially inflated prices and “manufactured” sentience of being a status symbol.
        Nip that in the bud and the worst side of consumerism won’t surface.

      2. It represents a principle which is so over-exploited in the society that the copyright royalties for hollywood movies, video games, and music exceed the value of the US agricultural output.

        You’re literally paying more for air than you’re paying for food.

  9. Also an interesting fact is that there is no worldwide patent. Not even an European patent. There is a European patent office, but that just forwards the paperwork to the patent offices of all 27 members and returns 27 bills, plus of of there own. If someone claims to have patented something, the first question to ask is: where?

  10. Here’s a question in good faith-

    I saw something on Hackaday that was a concept, a week or so ago- that was not a finished version made into a clock, and was 3d printed as proof of concept- much of how it actually works on the backside I don’t want, and only the look of part of it’s design is something I’d like to actually make into a clock, with full minutes and perhaps seconds, using a completely different set of materials and build design.

    Except I was thinking that after I make one for myself, not for sale, I might like to make some for sale.

    Probably like all of you, I come here for inspiration for projects just as much as I do for solutions to problems. Is there any way to use an idea legitimately I come across here with my own development for financial gain, if I can go beyond basic proof of concept from someone else?

    We could really use a series of articles written by patent and design lawyers who are also makers themselves and read the site. That would be just as valuable as a Hackaday Prize here in my mind. This community could really benefit from professional open guidance with examples like this article, except written by professionals who can actually comment on legality issues formally.

  11. > … who sets out to copy a design …

    the word “copy” is poisoned. Adam Neely (do check him out on youtube) has some very interesting videos on the importance of music as a related minefield, where imitation is a key component in learning and developing novelty upon. In addition, the technique of sampling has sparked entire genres (don’t miss the Amen break, https://www.youtube.com/watch?v=5SaFTm2bcac).

    Fair Use isn’t for charity, it’s a necessary antagonist to protection of new and unique ideas.
    But is there a need for protection in a completely open source and free use world? Those being in the position to mass-produce promising new things are not necessary those that had the idea but lacked funding, publicity or skills to go though the motions (marketing, design-for-manufacture, assembly, distibution, …) or simply location factors. Thus, a system that provides equality does not necessarily contribute to equity or justice.

      1. I touched upon a couple of points, so I guess I should have reworked my post a bit.
        The key insight might be that we are offended by the misjudgement that lies in the assumption that another project – imitating or building upon some “intellectual property”, and by the dishonest suggestion that everybody would have the same opportunity to turn a profit with “their” concept if they so chose (same equity).

        There are many illustrations on the web describing the differences between equality, equity and justice. So the accusing supposition of equal equity does not hold, but the battle is fought on the grounds of inequality (exclusive rights to make use of an idea).

        So the way justice is approached here is rigged. This however led me to the suspicion that so is the belief that having every idea and principle in the public domain.
        Adversaries cannot appropriate a concept that is already freely usable, but they can claim the market space, and the profits. Thus, equal access alone is not sufficient to bring about justice.

        I’ve also experienced that strong advocates for open source – everything sometimes tend to see commercial success as authoritative in terms of the quality of an idea, and not equity.

        Sorry for getting carried away there. The conclusion might be that no matter whether we’re talking about the monetization of concepts protected under patent / copyright law or monetization of open source projects, avoiding injustice is not as easy as asking for equal freedoms to use, imitate or derive from a concept.

        There’ll always be individuals or entities that game the system while not sharing your values of framework of justice, and we’re not done figuring out what this means for an open source world. Instruments of fairness and arbitration are needed, both in the copyright landscape as well as the public domain. Creative Commons (share-alike, attribution) comes to mind, but what is the equivalent in Copyright Land? There is no right to license something, let alone a guarantee to do so under appropriate conditions. Oh wait, there is… and that’s supposed to be fair use, e.g. for derivative work with clear advancements and contributions, or simply for educational pruposes and discussion.

  12. If I got this halfway right the design files (CAD) of a hobbyist copy of such a “registered” design could be made with e.g. OpenSCAD and several wrongly defined variables.
    Then publish an image with the “illegal numbers”[1] where the proper numbers are “drawn”.

    I’m thinking of the general dimensions, forms etc. -> oval form, too long clock arms, some illegal inversions or whatever of some objects in the OpenSCAD file (haven’t worked enough with OpenSCAD yet to be sure I’m not talking nonsense).

    At what point does a description of a registered design not infringe on it anymore?

    Whats the name again of this hacking technique where your code stitches the actual malicious parts together with parts of other programs (where you jump in somewhere in a foreign function to use the remaining parts of it until the next return)?
    Would sth like that work here to circumvent the registered design?

    [1] https://en.wikipedia.org/wiki/Illegal_number

  13. anybody can copy even a Picasso, but is a real Picasso? but in this case it looks like the same external desing , period , may be inside you had rockets and fireworks , but design its exactly the same , for small companies is a full damage, if they registered , they had all rights over it. (at least you live in Venezuela, Iran, North Corea where copyright laws and royalties are like a toilet paper).

    A real maker is not a “copy from others”, leave that for Chinese , may be you can use for inspirational guide but sure not for my public prototype

  14. The UPC is the third attempt to validate software patents in the EU:

    https://ffii.org/ffii-rejects-the-proposal-by-the-german-ministry-of-justice-to-present-the-agreement-on-the-unified-patent-court-upca-to-the-german-parliament-for-ratification/

    It will have to be renegotiated as the UK was hardcoded in the UPCA, and the UK just left the treaty few weeks ago.

    The CJEU should have a say on software patents, and patent law in general, creating a court system outside the CJEU is pretty insane, but this is what the UPCA does.

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