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After releasing the “Open source Homeland Security non-lethal weapon – The Do-it-yourself handheld LED-based Incapacitator” a few folks around the web emailed or posted saying “you can’t build that for yourself, or even for fun, it’s patented!” – This comes up once and awhile in the world of making things, perhaps it’s a good conversation starter- here’s a snip from a wikipedia article on “Research exemption”…
“In patent law, the research exemption or safe harbour exemption is an exemption to the rights conferred by patents”…
… and from a previous case where this seems to have been tested, the court(s) said –
“experimental use defense” for “amusement, to satisfy idle curiosity, or for strictly philosophical inquiry.”
We’re not lawyers, this is not legal advice – that said, this seems to makes sense. Imagine drug companies needing to wait until a patent expires to figure out if they can make a generic drug… or imagine everyone sitting on their hands not able to test the claims on a patent for “amusement, to satisfy idle curiosity, or for strictly philosophical inquiry”… making things for yourself to see how things work is fun – do research on your own about things you see/hear as well as questioning what “armchair patent experts” say on the internet. Oh, the “Do-it-yourself handheld LED-based Incapacitator” is not for sale, it’s not a kit, but you can read all about it.
Agree, disagree? Have something to add? Post up in the comments with your thoughts!
20 thoughts on “Research exemption – calm down, it’s ok to “make” something for fun that’s patented”
Comments are closed.
My understanding of patents was that they protect the first person to design (or in some unfortunate cases market) a device from an onslaught of knockoff created by reverse engineering their hard work. This may be wrong with how lawyers and lobbyists work on perverting laws now a days. Ladyada does not appear to be selling these devices or kits for them. She has posted plans to approximate the function of the original device not the patented plans themselves. Besides what idiot issued a patent for a strobe light with a random generated flash any way.
The summary of the research exemption given here is mostly right, but it’s a bit misleading in several important ways.
Necessary disclaimer: I am not your lawyer, this is not legal advice. Anyone reading this should consult a lawyer about their situation before engaging in activities that might result in a lawsuit.
Anyway, as the article says, the research exemption protects the use of a patented device or process for “amusement, to satisfy idle curiosity, or for strictly philosophical inquiry.” However, what it says next about generic drugs is misleading; that is a separate exemption, and almost certainly would not fall under the common law research exemption that concerns us. Putting such emphasis on there being no kit for sale is also not technically relevant, though it would matter in any actual lawsuit.
The important thing is to take the part about “strictly philosophical inquiry” very seriously, with emphasis on the “strictly”. As it’s currently understood, the research exemption would not protect you if you are making a patented device as part of something you plan to sell, or as research for a different product you intend to sell. You can’t even make it just so that you can use it for yourself. If you will personally benefit in any way from the patented device or process, other than the satisfaction of intellectual curiosity or amusement, you are probably infringing that patent.
I would guess hobbyists violate patents all the time, but most businesses aren’t interested in seeking them out and bothering them about it unless they view the infringer as a competitor or other threat. That’s not to say to go ahead and do it – it’s still infringing a patent – it’s just a statement of the way things are.
Regarding the Bedazzler, it doesn’t look like it’s violating the patent they show in the video (it lacks a “spatial scanning element”, which the patent requires)*, but who knows what other patents there already are on such devices.
Personally, I think the state of the law on this is complete crap, but it’s the way it is. Until we get some serious Congressional patent reform in this country, it’s not likely to change. I’m actually really glad make posted about this, because it’s important that people realize how stupid the law is on this. The more people are aware and complaining about it, the more likely we are to see some change.
*There is one claim, “23. A disabling device comprising an LED array having simultaneous multidirectional and temporal strobe” that it might fall under, but it’s iffy.
@ad astra – nice comment(s)
Sure, making my own handheld LED-based Incapacitator may be illegal, but if they try to stop me. . .
. . . I have a handheld LED-based Incapacitator!!!
Bring it on!
Oh no. She is a soviet spy. No just kidding but as one said in the previous posting “the cat is out of the bag now”. It is ok to read a patent, and build the same device for research purposes. It is even fun. But we would like to see ladyada building flower powered processors – not war equipment.
@winterismute, wouldn’t you rather have me showing you how to build psychotronic weapons so that you know what the war machine is up to? these devices are likely to be used against citizens…and we paid for it!
Make love, make war. Either way, make something.
I find “not dying” to be highly amusing.
Therefore, making patented drugs to keep me alive, purely for amusement (I can hardly be amused if I’m dead) seems within the scope of the “for amusement” clause.
But, lawyers are, I’m sure, never amused, and always shootable.
I don’t know about US law, but for example in germany you won’t even need the research exemption (which we also have) because private use is exempt in general, as the patent only protects commercial exploitation of the idea.
It would be OK anyway. What’s not OK is attempting to enforce patent “rights,” which are a completely illegitimate form of artificial property right.
We’re fast approaching the time when micromanufacturing operations will be so small-scale and dispersed as to be completely below the state’s patent-enforcement radar. At that point, micro-industry can simply disregard patent “rights” and produce generic spare parts and modular components for proprietary platforms. The growth of flexible manufacturing networks over the past thirty years has created a situation where corporate headquarters are just redundant nodes to be bypassed, and their main source of power is the use of “intellectual property” [sic] to prevent such bypassing. The growth of micromanufacturing means we’re finally nearing the tipping point.