Open Source Hardware
Patent reform is on everyone’s mind. With a whole lot less fanfare, Version 1.0 of the Open Source Hardware definition was released last week by a community of volunteer hackers, business people, and other experts. Open source hardware is a new way to share design information. It gives inventors the option to eschew a patent and instead, freely publish design details, blueprints and other information about mechanical and electrical inventions (for example robots and printed circuit boards). Version 1.0 of the definition is not yet a license – defining license details will be the next step.
Open sourcing software code and hardware designs could be viewed as the ultimate enactment of the spirit of the Bayh Dole Act, whose purpose is to get federally-funded university inventions into widespread, public use. Open source licenses are controversial. Depending on your point of view, open source hardware licenses could someday act as an “unpatent,” flooding the coffers of prior art and stifling company innovation. Or, like low cost, customizable open source software such as Linux/Apache/MySQL/PHP, freely shared hardware design information could create a bigger playing field and stimulate innovation and profitable invention.
Open source software licenses are already in widespread use. If open source hardware licenses also gain widespread acceptance and are embraced by university inventors, this new licensing paradigm will disrupt our current university technology transfer model and introduce new modes of commercial product development.
Disrupting the centralized, linear model of disclose invention –> patent invention –> commercial license
The broad acceptance of patents, combined with the lack of recognized alternative licensing schemes have offered hardware-oriented inventors few alternative, “do-it-yourself” licensing options. In comparison, a mature suite of open source software licenses offers hackers, developers and companies a widely recognized, well-defined alternative to traditional intellectual property vehicles such as patents, copyrights, and commercial licenses. Open source software licenses range from those that provide source code only for documentation purposes, to those that give permission to re-use code for any purpose, including commercially.
As they gain momentum, open source hardware licenses will disrupt the base unit of intellectual property — patents. Universities file for thousands of new patents each year. What will happen to university patent portfolios if university inventors choose to open source their hardware inventions rather than to add them to the university’s patent portfolio? Once public, design information becomes prior art, which could directly counteract a university’s ability to file for a patent later on down the road. In addition, traditional notions of inventorship dissolve in open source community. Co-inventors will become the norm; in university-driven open source hardware projects, many co-inventors will not be affiliated with the university, making ownership and compensation difficult to disentangle.
Today’s patent-based university tech transfer model is not ready to operate alongside open source hardware licenses
Let’s fast-forward ten years to a time when open source hardware licenses have become as commonplace as open source software licenses are today. Imagine you are a university professor or student and you have just invented a new widget that you do not want to commercialize via a patent and license. Instead, like your code-writing brethren, you want to release the design according to an open source hardware license that will give anybody full usage rights to your invention, commercial and otherwise. You believe that freely sharing your design will enable your fellow innovators to build on top of your invention and catalyze new business opportunities for companies in that space. In other words, you want to support the intentions underlying the Bayh-Dole Act.
So you publish your machine designs, supporting software information, and any other data and documentation that anybody would need to fabricate your invention. You do not follow up within 12 months with a provisional patent application and your invention takes off like wildfire. Are you guilty of mis-using university resources? You didn’t earn a dime from the open source license. Yet, you also did not help the university earn a dime from your invention, either.
How universities manage open source licenses today
The scenario described above has been playing out for years with software that’s created on university campuses. Most software written by university faculty and students is open sourced by its creator. University patent offices have long co-existed with on-campus software developers, sometimes comfortably and sometimes not-so-comfortably. Open sourcing software remains a grey area in university intellectual property (IP) policy since it is does not financially enrich the code writer, nor does it violate university norms of intellectual freedom and research integrity.
The software developer chooses an open source license to freely share the software in various ways with her peers, not to make money from it privately. University faculty or students that create software applications, tools and algorithms don’t perceive a software patent as a major career-booster, nor as a critical tool for successful commercial use. More immediate career rewards come from increasing their visibility in the user community. There’s little financial incentive as the commercial life expectancy of software is usually shorter than the life of the patent.
Universities usually do not actively prevent their students and faculty from using open source licenses . Revenue gains from patenting and commercially licensing the software are unlikely, and would not justify the university’s time and effort. Instead, universities deal with the conundrum by writing (but not stringently enforcing) policy that requires the software creator to first disclose the software to the patent office so it can be evaluated for commercial potential. If the software is deemed of low commercial value, then it will be cleared, and given back to the developer who is free to open source it.
Pragmatic University vs Enforcement University
Let’s return to our future scenario, where open source hardware licenses are widely used by both researchers and product development companies. How should future universities manage these alternative licensing modes available to their inventors? Let’s examine the strategies embraced by two hypothetical universities: Pragmatic University and Enforcement University.
Pragmatic University has accepted that most of its hardware and software patents are unlikely to ever be licensed. In fact, patenting raw university technologies that remain unlicensed costs most universities millions of dollars each year in administrative overhead. Therefore, Pragmatic U has embraced a de-centralized IP strategy that leaves inventors free to open source their inventions without requiring approval from a central office. If inventors want to file for a patent, they may work with the university’s tech transfer office (or they may choose their own commercialization third party agent — see the free agent model). If inventors feel an open source license is the better vehicle to blast their work into widespread use, they can select from a variety of open source hardware and software licenses.
Pragmatic University’s open source policy is based its on Stanford’s open source software policy, which is absolutely gorgeous, realistic, and user friendly. And breathtakingly simple. (Yes, this is the same Stanford whose legal battle over patent rights has reached the Supreme Court.) The bracketed words in the sample policy below were added by me to illustrate how the open source software policy could be extended to cover open source hardware.
- Was the developed under a sponsored project, or some other sponsorship that would encumber or cause Pragmatic University to “owe” the to another entity? Did you incorporate anyone else’s ?
- In order to open source the , you must be certain you have the right to do so. (All the contributors should agree on whether or not to open source the .)
- If you wish to open source , you must be careful that you are only open sourcing Pragmatic University and no other third party or software code or patent is embedded in the .
- [Number 4 is my addition] If you intend to sell consulting services involving your open sourced invention, you must provide full and up-to-date documentation to establish a level commercial playing field.
In contrast, our other hypothetical university of the future, Enforcement University has chosen another approach.
- Require that the inventor disclose their invention or software for commercial appraisal from a centralized technology transfer office. Set a high bar for giving approval for open sourcing; take months to decide.
- Set up regular “audits” of university inventors and software developers that require them to list anything they have open sourced in the previous year.
- Stiffen the campus IP policy to make unapproved open sourcing a direct violation that puts the inventor’s good standing at risk.
Who, exactly, is the intended beneficiary of Enforcement University’s approach? Not the university’s revenue streams. Not the inventor or software developer. Nor the research community or the tax-paying public. Instead, Enforcement University’s open source policy has inadvertently set up an uneasy game of cat-and-mouse that pits the technology transfer office against its university inventors.
Open source does not mean anti-commercial
Most universities have not yet embraced the simple beauty of Stanford’s approach to open source software licenses. To my knowledge, none have created a policy that directly deals with the open sourcing of hardware inventions. However, small stirrings are afoot in the university inventor community. It will be interesting to see how university administrators react as they catch on.
The university example of freely shared hardware designs that I’m most familiar with is that of the 3D printer. (Another interest of mine, in addition to university commercialization strategies, is innovative technology and business models in general. Last year I co-authored a white house commissioned report on the emerging field of personal manufacturing.) Freely shared machine designs enable inventors to tinker with their own enhancements; inventors are free to patent their enhancements and to sell open sourced machines and related services. Schools and STEM educators can build their own machines from detailed blueprints as a classroom exercise.
For example, the University of Bath open sourced designs for its 3D printer, RepRap. Commercial companies like RapMan and Makerbot created enhanced 3D printers based on the original RepRap design and in turn, open sourced their own enhancements. These companies run a brisk business manufacturing 3D printer parts and making user-friendly kits for hobbyists who want to assemble a 3D printer themselves, at home or at school. At Cornell, the Fab@Home team has open sourced their core 3D printer design. A business in Philadelphia called NextFab Studio sells kits for Fab@Home printers and runs a “gym for inventors,” where for a fee, visitors get access to 3D printers and other prototyping equipment. I’m certain there are more examples of open sourced university hardware designs and business models– hopefully readers will describe them in the comments area.
Proponents of open source hardware are not anti-commerce. On the contrary. Many own businesses, and their goal is to create a vibrant, pro-business ecosystem, where machine designs can be freely and safely shared in a known context. In addition, the proposed terms of the open source hardware definition make it clear that it’s ok to commercialize modifications built on top of the open sourced design. The money is made in selling enhanced versions of open sourced designs, patenting add-on modules, and selling services. In fact, open sourced designs actually make it difficult for an inventor to have her invention “stolen” by a corporation that has deeper pockets for legal fees.
Which university is a better steward of our nation’s federally funded basic research? Pragmatic University or Enforcement University? Change is coming. Ten years ago, software companies were confounded by open source software. Since then, new business models have emerged that most people could not foresee at the time.
Open source software licenses already offer university software creators an alternative to the university’s patent+license commercialization model. Open source hardware licenses are next. University intellectual property strategies will need to learn to peaceably learn to co-exist with open sourced hardware licenses. A centralized, enforcement-flavored intellectual property strategy is not going to work. Nor will university policies that blindly favor hardware patents at the expense of alternative methods of sharing design information.
Melba Kurman writes and speaks about innovative tech transfer from university research labs to the commercial marketplace. Melba is the president of Triple Helix Innovation, a consulting firm dedicated to improving innovation partnerships between companies and universities.