First to file

#1

Something I don’t understand is what protects me from someone taking something from my design and patenting it? Seems open hardware companies like Littlebits have publicity and momentum and would be difficult to compete against. But what about a solo person like me with my one person website?

#2

This is one of the most common questions we get asked at OSHWA. There is nothing that protects you from someone else trying to patent your work other than prior art, first to file does not negate prior art. Many members of the community publish their work on blogs and websites frequently (prior art must be public), but there is no guarantee that a patent office will find your work. In a perfect world, the patent office would not be able to award a patent if you’ve published prior art publicly.

  • Alicia
#3

Thanks for the input Alicia. If this is a common question which I agree it is, how about putting it in the FAQ.

If you had prior art and someone files and gets a patent and then comes after you can you fight this by proving prior art?

Also is there something OSHWA can do about the prior art and patents. Get that into law to protect us?

#4

Good point! I will add it in the FAQ.

If you had prior art, but the USPTO misses it and still grants a patent, the fight is unfortunately expensive and time consuming, we wrote about that in our Legal Meetup blog post: http://www.oshwa.org/2013/12/05/open-hardware-legal-meetup-nyu-nov-11/

“After the time period has passed for public viewing of a pending application, the patent is awarded or denied. If a patent gets awarded, you will need to petition the USPTO to review any prior art that is in the public domain that the patent examiner did not know about : this costs $7K-17K in filing fees and attorney time. The process of petitioning the USPTO after a patent is awarded is expensive (think millions of dollars) even if you have prior art. At this point you’re in litigation, so call the EFF’s branch to Eliminate Stupid Patents.”

Once we get enough donations to fulfill this project, we’ve been kicking around the idea of a prior art repository - however there is still no guarantee that the USPTO will use this as a resource - but we can hope!