Innovation is only possible if your creation is legally shielded.
I’ve thought about this article for several weeks before putting fingers to keys. The truth is, the common knowledge of how to protect your ideas isn’t freely discussed in Peoria, which leaves our local garage inventors just waiting to be ripped off by some of the more unscrupulous corporate and legal predators out in the business wild. Well, that’s exactly what IP protection is all about: how to avoid getting ripped off while commoditizing your creativity into a product with a definable value.
IP protection also provides the foundation for a protected exchange in which one might innovate and build on top of another’s inventions. Let’s delve into the different ways you can unleash your creativity for the world to enjoy, share, attribute, and with well-planned foundational steps, BUY!
A World More Cutthroat
For centuries, the patent world made sense to the common maker. The first to invent a useful and novel widget could file whenever he or she wanted to, within one year of making it public. In 2011, the America Invents Act changed all that to whoever files the patent first—and in many inventors’ opinions, the creative world just got much more cutthroat.
The ethos of a makerspace is to innovate, invent or reconfigure the world into the one we want to live in personally. In this process of modification and creation, routine debates over the value of protecting our ideas according to our end goals would spontaneously propagate. And the end goal is the true determination of what steps an inventor may wish to take to “make the world a better place.”
With these preconceived notions, I humbly submit to you, the aspiring maker, several different measures of IP protections and test-case examples. This primer is in no way complete—and I hope you find a point of contention. Only by having these conversations can we as a city innovate and self-educate in a collectively beneficial way.
This is a makerspace’s favorite stance, due to its communal inclusion of all ideas great and small. Those inventions that are intended to be platforms are most commonly open-source (OS) technologies, where software or hardware must follow the parameters of the Open Source Initiative:
- Free redistribution;
- Freely accessible source code;
- Derived works are encouraged based on the original work;
- Integrity of the author’s source code;
- No discrimination against persons or groups;
- No discrimination against fields of endeavor;
- Distribution of license is the same for everyone;
- License must not be specific to a product;
- License must not restrict other software; and
- License must be technology-neutral.
Best application if your tech is designed for:
- Dependence by vendors or whole industries;
- Security—fast response time for patches and stability of intellectual assets;
- Flexibility—for individual requirements or integration/interfaces for a system chain;
- Cost—reduced for base product, industry built upon installation, customization and/or implementation;
- Innovation—a dedicated, cooperative community for process support and development.
Successful examples: the Internet (specifically, TCP/IP), Linux, Android, Drupal, WordPress, GitHub, Arduino, “Open Hardware.”
Your work would most benefit from being open-source if your physical product or code is intended to be a platform for others to build on top of; integral to the function or security of an industry; or deficient in research and development and/or quality control, but could evolve quickly through supportive crowdsourcing. A well-curated collective of contributors is always smarter than any one individual, and when a group collaborates, that group’s adoption is half the formula of creating impact. While the platform itself is not the money maker, support and supply of the derivative works are.
Open Patents/Creative Commons (aka “Copyleft”)
These concepts are lumped together due to the intention behind them, yet the execution is completely different.
The intent: As the creator of a physical object or author of media/code, you would like to retain the rights of creative ownership of your work, but are willing to relinquish other rights. This allows greater collaborative efforts while ensuring attribution of credit, at the very least.
Open patents require the inventor to fulfill the requirements and file a patent on his or her original work. The patent is then shared so others may utilize and even improve upon the original work. The rights to the improvements are accepted as pertaining to the original work; therefore, exclusive rights to patent the improvements remain with the original patent holder.
Creative Commons is a series of licenses that differentiate the rights retained under the “copyleft” umbrella term. As open patents are almost entirely for hardware purposes, Creative Commons licenses are for authored works, both analog and digital. While relatively new, they are legally binding versions of copyright law, and unless specifically stated, retain all the rights of a traditional copyright license.
Per the Creative Commons Foundation, the different licenses you can specify for your authored works include (from least to most restrictive):
- Attribution (CC BY). This license lets others distribute, remix, tweak and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, recommended for maximum dissemination and use of licensed materials.
- Attribution-ShareAlike (CC BY-SA). This license lets others remix, tweak and build upon your work even for commercial purposes, as long as they credit you and license their new creations under identical terms. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia; it is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.
- Attribution-NoDerivs (CC BY-ND). This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
- Attribution-NonCommercial (CC BY-NC). This license lets others remix, tweak and build upon your work non-commercially. Although new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
- Attribution-NonCommercial-ShareAlike (CC BY-NC-SA). This license lets others remix, tweak and build upon your work non-commercially, as long as they credit you and license their new creations under identical terms.
- Attribution-NonCommercial-NoDerivs (CC BY-NC-ND). This is the most restrictive of the six main licenses. It only allows others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.
Best application if your tech (or authored content) is designed for:
- Community building. While your tech has immediate value for your customers, by opening up your works for modification, customer complaints, wishes and observations are shared back to you in evolutionary steps. This provides a means to redistribute the best modifications back to your community of customers with economies-of-scale savings in production—providing the convenience of rapid improvement for them, while maintaining stewardship and control of feature development of your creation.
- Portfolio sharing. If your content/invention has a function that materially helps in the research or content creation of related materials, then a portfolio of related tech is gathered under a mutually shared contract amongst content providers/patent holders.
- Controlled distribution of content. As the original author/creator, you control how much of the value proposition you capture of your original and derived works. With the least restrictive license, you ensure that you are properly attributed for your inspiration and hard work. At its most restrictive, you as the license/patent holder determine who can charge, who can distribute and how much modification of your work you will allow.
Successful examples: Tesla Motors battery patents, Mercedes Benz safety patents, blogs, videos, digital articles, Twitter, Vine, Facebook “sharing.”
If you want to increase distribution of your works, this strategy allows for rerelease, modification and commercialization under licenses that you specify. Yes, this strategy includes any content you wish to go “viral.”
As stated earlier, patent filing procedure and rights have recently changed, whereas copyright is as it’s always been.
“First to File”: Ever notice how inspiration has a tendency to strike multiple inventors at relatively the same time? If we all played fair, the argument would hold that the basic building blocks igniting that inspiration may have been present for all the inventors. If we all played fair.
No longer can you mail your idea to yourself as sufficient proof that you thought of it first. In order to patent your inspiration, you must be the first applicant to successfully demonstrate that your invention is:
- Statutory—not electromagnetic signals or forms of energy; not music, literary works or compilations of data; and not data structures or programs;
- Novel/new—not known to the public before it was invented; not described in a publication more than one year prior to patent filing; and not used publicly or for sale to the public more than one year prior to patent filing;
- Useful—the invention must be able to perform the task described in the patent application; and
- Non-obvious—the innovation cannot be an obvious improvement of a prior device by a person skilled in the field of application. For example, a contractor would recognize that a Phillips screwdriver with a longer shaft to reach a more distant screw is an obvious improvement based on the current Phillips screwdriver.
Copyright is an automatic protection upon finishing and publishing your work that protects from unauthorized reproduction for the life of the author plus a categorized number of years, a minimum statute of 25 years. But if you, the author, truly want to cross your “t” and dot your “i,” you’d best register your finished work with the U.S. Copyright Office.
But coders beware: ideas and formulas are not copyrightable! If you write a program in one language, it’s true that no one can legally copy your code for their own purposes without your permission. However, anyone can write a similar program in another language to attain the same functionality.
Once upon a time, one particular program language had the best functionality features for a particular device; this was Apple’s early thesis that Microsoft is slowly adopting—albeit a little too late to matter. But as computing power, storage and networkability gets faster and better, the barrier of “best language” is quickly fading from distinct first-mover advantage!
Hopefully, this primer has got you thinking about how to protect the value of your work. As much as I’d like it to be thorough, however, it would surely be better deemed as “food for thought”—a starting point for researching your best options. The best advice is that which comes from a licensed professional with an educational and professional background in your area of interest—whose time you paid for. Unfortunately, there is a startling lack of IP attorneys in Peoria, particularly when there is so much hype about the economic impact of innovation. You can count on one hand the number of IP attorneys in Peoria who are free to take walk-in clients. What are the chances they’ve defended your particular type of IP, let alone successfully?
If you are looking to commercialize your work, seek the absolute best counsel you can find—even if it means heading to New York City (ad/enterprise-tech, fintech, cleantech) San Francisco (software), London (fintech) or Boston (hardware, biotech). If you can’t afford to see the best, at least go to St. Louis or Chicago to find an IP lawyer with a degree in your particular field of interest. Innovation is only possible if your creation—your expression of tech—is legally shielded to defend itself in the (non-)commercial wild. iBi
Clint LeClair, MD is founding president of River City Labs, NFP and founder of Protogro, a local biotech incubator.