Creative Commons and gear design.

Like all complicated topics, this one deserves far more detail than I am going to write, lol!

To be as brief as I can…

Will some people rip you off? Yes. That's human nature.

Could you be ripped off by a commercial entity who will then patent your design and make money from it? Yes.

Would it be prohibitively expensive to fight them in court? Yes. You might even lose!

Will most people just use your patterns and make it themselves? No. Not everyone enjoys doing that, or has the necessary skills to do it.

It's like restaurants giving out their recipes. Some refuse; others will do it. I have only asked for restaurant recipes a couple of times — usually when I'm travelling (so it's not like I *could* go to the restaurant again, anyway). One local restaurant gave out a recipe to a magazine; I made it, it was delicious, and it inspired me to go to the restaurant to try some of their other dishes. (In a horrible ironic twist, my version of their recipe was so much better than theirs, that I never went back!)

Compared to other technologies, I don't think most backpacking gear is that difficult to replicate. Example: it's not very hard to figure out how a particular pyramid tarp or quilt is made. If someone is skilled enough to make and sell gear for profit, they can probably figure out how to make most of what you are making.

You can buy the pattern to make a Gossamer Gear G4. Or you can buy the pack from Gossamer Gear. I think only a small percentage of people make their own gear.

Edit: in summary, I feel that patterns for gear would be very useful to MYOG newbies (like myself), but not very useful to a pro

Another company could try to patent your designs, but might not be successful. The rule is that only the original inventor can patent stuff. The patent office would not know that they were not the inventor, so the patent office might give them a patent, IF the design is different from other designs, and not an obvious modification of other designs.

If they somehow convinced a patent examiner that "their" designs were not obvious, you could probably prove that you had made the same design earlier than their filing date. With that proof, you could have their patent declared invalid, or at least be immune from a claim of infringement of their patent. If you could prove that they got the design from you, all the better. If you showed that to their patent attorney, he would have to disclose it to the patent office, or face a charge of inequitable conduct. No patent attorney would risk that for the benefit of a client, especially a small potatoes client.

Would somebody copy your designs and use them in a way you didn't intend? Sure.

You could copyright your design very easily, and then give permission to use the designs under certain conditions. If they charged off and didn't follow your conditions, copyright is easily enforced and disastrous to the infringer.

I think both Valerie and John make some very good points. As for the concerns Bob raises about patents, once you offer a design up on the Internet, even if just on this site, there will be a date tag associated with it that should make it impossible for a company to copy your ideas and then claim infringement. As for you patenting the designs yourself, that goes way beyond my experience. I hear that it is expensive and you need to prove something truly unique about the design. I am sure there are others on the forum who can offer advice if you go that way.

As for the idea of making your designs available to this community, I like it. Besides providing inspiration and a starting point for MYOGers, it would create good will withing the BPL community and also help with creating more buzz about Cascade Craftworks. And after a while when questions about your products come up in the GEAR section you would have not only purchasers but also MYOG makers who could speak to their merits.

If someone wants to copy your design and try to outsell your version they can still do it whether you have a pattern out there or not – all they have to do is buy one of yours and take it apart. The difference is not much when you consider what it takes to market and sell the item once you make it. So I don't think that having a pattern available represents a significantly larger threat to your business.

And the number of folks who would make instead of buy your item is probably quite small, plus those folks might very well make their own, pattern or no pattern, so that reduces the number even more. What you might consider doing is selling your pattern for a few bucks – then you get something out of it.

Another point I would consider is that if you ask for feedback from those who use the pattern you may get some useful information that will help you to improve your product.

Just a successful example for you….I have a girl friend who makes basic Victorian dress patterns for sale. Her basis was that modern sized people needed modern sized patterns to make their own re enactment costumes, as all of the original patterns were too small and very difficult to find. She worked hard, learned how to make patterns in modern sizes from originals that seamstresses and tailors could use as springboards for their own works of art. She started a forum and web site to provide support. It took off like wild fire. She kept her prices low, using architectural copy machines and paper, everything is easy to size and use over and over…..no waste or rebuying the same pattern unless you destroy it by accident. If you want to talk to her to see how she did it PM me and I'll give you her contact info.

DM

"You could copyright your design very easily, and then give permission to use the designs under certain conditions. If they charged off and didn't follow your conditions, copyright is easily enforced and disastrous to the infringer."

I'm not a patent attorney, but if this is true, it would be the route to go IMO. If someone sees patent pending or similar on your website they're less likely to steal your design. Us MYOG'ers are going to copy you regardless, but at least not for profit. :)

Ryan

John H already pointed out that Gossamer Gear sells the G4 pattern. Six Moon Designs has published their Meteor Bivy and I believe Thru-Hiker has plans for some early Tarptent Designs. Perhaps you could publish/sell patterns for some of your designs to whet the appetite of the MYOG crowd but leave out some of the added options that make your packs unique.

One reason for patent/copyright is as a marketing tool

"We have a patented design"

doesn't matter if people copy it

Or, you could sue people and that would be a further marketing tool – there would be news stories about your law suit

I don't have a problem with marketing. It will increase your sales, so you'll have a successful business, so you can design new stuff…

Thanks everyone for the replies. When it comes down to it, my desire to share patterns is stronger than my fear of being taken advantage of.

As it turns out, it is very difficult to patent a sewn softgood. The pattern itself however can be copyrighted easily.

Is anyone familiar with the Creative Commons license structure? It is a form of legal agreement with unique terms that provide access to a piece of work, while creating terms that people using the said piece of work must follow.

For example: you can download and use /modify the pattern for free, as long as it is not for commercial gain, that there is always an acknowledgement of the original creator, and any further distribution uses the same license structure.

It seems like the way to go for this sort of thing.

I looked into the patent process 5 years ago when I began selling the Zia grills I make. The cost of the process was beyond what I could rationalize for such a low volume product. What I learned was that the original designer/seller has 1 year to file for a patent from the time that the product was first offered for sale to the public. After the one year, if no patent filing is done, the design becomes public domain. Therefore, no one can sue anyone for infringement. In my case, I asked Gary Neptune (the owner of Neptune Mountaineering here in Boulder before he sold out) to write a letter which stated that I offered my grills at his store on consignment beginning on a specific date. Actually, I didn't sell a single grill through his stores, but Gary's letter covered me against any imitators that might try to mess with me later.

Nathan- Under the creative commons liscense, others ARE allowed to use your design for commercial gain. They just have to credit you for it.

A copyright wouldn't really protect you here. It would only protect the piece of paper with your design on it. It wouldn't prevent someone from creating something off that design.

If you were to pursue a patent, it would be a design patent. For your product to qualify it must meet all the following criteria: New, original, non-obvious ( to somebody of ordinary skill in the art) and ornamental design. Note that this would only protect the product for 14 years from the date its issued. From there one can do whatever they want with it.

-Gary to clarify on your claim. You CANNOT file a patent after the product has been sold in the marketplace. That would constitute prior art. Therefore invalidating any attempt to file a patent. If you filed a provisional patent before selling, that would give you 1 year to test your product before deciding if you wanted to pursue a patent.

Source- Myself. Intellectual property class. I can provide more info if needed.

To start with, I like what the Creative Commons people have done with their licenses; essentially creating human and machine-readable versions to go along with the legalese. For much of what people produce on the Internet, a CC license is a good way to protect works in a manner consistent with the old Internet traditions of sharing.

That said, if you're making utilitarian soft goods (packs, shelters, etc.) there isn't much you can (cheaply, easily) do in the way of IP protection. Trademarks would generally only apply to labels and distinctive ornamental elements, you are unlikely to get a patent**, and because such goods are fairly utilitarian the designs generally can't be copyrighted. (So, CC licenses are likely not useful for you.)

-J

** If your design is sufficiently original you might be able to get a design patent for the ornamental aspects, but as gear's form usually follows function, this is unlikely. A utility patent (the traditional type of patent) could be appropriate for those parts of your design that are functional in a new and non-obvious way.

Jack: To clarify your clarification, I believe that only applies to patents outside the US. Within the US you have 1 year since first publication/sale. But, if you do wish to obtain foreign patents as well, you are quite correct that a provisional patent must have been filed before that first sale/publication.

(And in terms of timeline pitfalls, it only gets messier from here…)

Edit: corrected "invention" to "publication"

Jeremy- I stand corrected. I looked into it again. As you stated, the US allows a grace period of one year from the time you publish/sell/whatever your product before it is considered prior art. It does vary by country though.

Jack, there are multiple creative commons license types. Several of them prohibit commercial redistribution of the work.

http://creativecommons.org/licenses/

Yeah, I'm gonna do it. Perhaps, even creating an easily accessible open source database for gear patterns of all types. Now I need to brush up my CAD!

My source- I am a patent attorney and have been doing this for 20 years.

Time limits for u.s. Patent filings, one year from date of first public, enabling disclosure, or from first offer for sale.

Foreign: depends on the country, but some are strict that if you have sold or disclosed first, you can't get a patent in some countries. How do they know when you first offered for sale or disclosed? They don't know. Do they think they have 50,000 investigators to track it down, or even care?

Design patents are an option, if the design is much different from other designs. They are enforcable, if you have the money to litigate. Design patents can be easy to get around.

Utility patent: doable, if the design is different enough. Price: $7000 or so. The patent can be licensed to a company. You can't enforce a patent against 100 hippies in Oregon making them in their garages.

Copyright: very cheap ($70), very enforceable. You have to file for copyright before the design is infringed. You can copyright the pattern, or the article made from that pattern as a three dimensional work of art. You can't protect the utilitarian features of an article, just the non-functional features.

I was working for a small company about twenty years ago that had a great electronic design, so they filed for a patent. Then they went quiet about it. One extremely large company approached us and asked our company if we wanted to go into a partnership deal for a future product that used their clout and our design. We agreed. Once they got our design details, they set about to ignore the partnership and make the product with our design, all on their own. We could have started trouble right then for patent infringement. Instead, we "let them run" for a while. We let them produce the product for a couple of years and make some profit. Then we asked them how they would like to settle up over the infringement. It turned out that the whole infringement problem was concocted by one mid-level manager. Once the high-level managers found out the truth, they fired him and settled out of court with us for a whole bundle of cash. The amount was much more than we could have profited out of it on our own.

Aren't patents fun?

–B.G.–