The Open Source patent – A Disruptive or the Middle Way?

Is open source patenting a possibility? Is patenting totally contradictory to the idea of open source?

There are plenty of people who espouse the view that patent protection is simply a tool for big business to flex its muscle and block access to innovation by small players and competitors.

However, the underlying rationale of patent protection is to force an invention onto the public record. Sure, the patent owner gets a monopoly but it is limited for a specific period of time (very limited if you compare it to the monopoly a copyright owner gets) and after that it is free for all to use – down to the very last detail. In fact, you can’t get a patent unless you put in the detail.

So the patent databases in reality form the largest standardised library in the world…publicly accessible (no paywall / subscription fees) and reliable (at least in relation to granted or issued patents).

Why should the open source community consider patenting? Getting a patent for an invention blocks another party from getting a patent for the same invention. So, if a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it (just as open source software is licensed). This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain. Check mate.

Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence. A term of the licence may be that any modifications, enhancements or improvements are owned by the (open source) patent owner, thereby retaining all enhancements for public use.

Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large.

So, how is open source patenting workable?

One of the key hurdles to patentability is that an invention needs to be novel (new). This means it cannot be publicly known or used before the patent is applied for. How can open source collaborators collaborate without destroying novelty?

One suggestion for making it workable would be to exploit the “grace period” available under patent laws in countries such as Australia, Canada, Japan and the USA.  A grace period means that you can still apply for a patent after disclosing your invention (sharing it with open source collaborators) so long as you lodge your patent within 6 to 12 months (depending on the country). Sure, it’s not foolproof because not every country has a grace period (Europe is a notable exception) but we’re talking about ways to overcome hurdles to enable open source collaborators to tap in to the benefits of patenting.

Another suggestion is that a project be flagged for patenting at its inception (before any detail is provided) and collaborators sign up under an NDA before they can view and contribute. For example, an inventor could:

1. provide a high level view of their invention onto a site;
2. invite contributions or help from the peer to peer to join in drafting a patent description;
3. interested participants could subsequently request to join the community specifically associated with drafting that patent description;
4. The inventor and associated community can then let the new contributor join if they show skills that are helpful to the patent’s description generation; and
5. All contributions would be logged against each contributor so as to determine if they are making a technical or inventive contribution.

What about costs?

Building a community of particular skill sets to help draft the description of an invention for a patent would offset patenting costs and aid in obtaining a contribution by a community in an Open Source manner. The patent once described (e.g. as per the steps above) could have a patent attorney draft the claims or oversee the claim drafting, rather than being involved throughout the process.

If the patent is successful, then:

1. it could be offered as a kernel to build further inventions off via divisional patents, etc.
2. if there is a commercial use (even by donation) then any funds received can be made available for use:
   1. by the contributors/inventors, or
   2. the community

to promote further open source patent opportunities such as a contribution for payment of Official Fees in each jurisdiction.

We see this approach as an open source solution to promote access and availability to the excellent resources available both in the community and in the patent offices around the world.