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As I understand it, software open-source licenses are backed up by copyright law, but copyright law does not (in the US) apply to hardware. Does this mean that, before issuing any sort of open-source license for hardware, I need to apply for a patent first so that the license can be legally enforced?

Edit: Let's assume for the purpose of this question that the jurisdiction is the US, and that the hardware in question is not covered by copyright law.

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  • Cross-site duplicate: Hardware principles / designs - can some be copyrighted or they are patented only? - exactly what are you trying to protect against? Feb 13, 2023 at 15:02
  • You might want to read the respective Wikipedia article to learn about the idea and commonly used licenses. It then depends on what exactly you want to protect. Chip design, PCB layout, industrial design, 3D models, ... You would need to be much more specific w.r.t. that and w.r.t. the jurisdiction(s) you are considering before you will get a good answer here. Feb 13, 2023 at 15:05
  • @Martin_in_AUT -- I already did read that article. It's not clear from that article whether, because "they typically rely more heavily on patent law than on copyright law, as many hardware designs are not copyrightable" that a patent should be obtained before release. Feb 13, 2023 at 15:11
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    If you need that level of detail, I'd strongly recommend you talk to an actual lawyer rather than some randoms on the Internet. Feb 13, 2023 at 16:28
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    @BetterthanKwora, patents are intended to protect inventions, i.e. things that nobody before you thought of creating or how to make it. If your design is not for a invention, you can't get a patent on it. Feb 14, 2023 at 9:02

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Generally, if you want to control how someone uses or reproduces a work you've designed, the law must first grant you a monopoly on some set of rights, and then you may choose grant some incomplete set of those rights to others.

Copyright is one such kind of monopoly, covering the rights to reproduce and author modified form of certain categories of creative works. Largely, copyright is limited to artistic works of a written, visual, auditory, or sculptural nature (but also, interestingly, includes hull designs for naval vessels as a special statutory exception). In general, copyright will not cover practically useful aspects of copyrightable works, and it calls these not-copyrightable objects "useful articles". The U.S. Copyright Office says:

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. It may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus, a useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware could be protected by copyright, but the design of the chair or flatware itself could not.

There is one kind of circuit design that is copyrightable, circuit mask works. The author of such a mask work is granted copyright monopoly, which can be licensed as any other copyright rights are, and used to limit distribution and reproduction to terms of your choosing, including when it is embodied in a physical manufactured circuit.

If your circuit design does not constitute a mask work, then it doesn't fall under a copyrightable class of work, and insofar as it's designed for practical utility, it is not copyrightable. Without a copyrighted work, you cannot employ a copyright license.

The only other applicable set of rights would be patent rights. If your circuit design is not eligible for copyright, it may still be patented, if it embodies a novel, patentable system. The system must have (1) some kind of new advantage over the state of the art and (2) be non-obvious to someone with "ordinary skill" in the art of circuit making. If your system meets this standard, you can undertake the process of applying for a patent, in whichever national jurisdictions, globally, you wish to have patent rights.

It is an expensive and complex process to determine what aspects of your design are patentable, draft an application with explanations and illustrations, and register your patent globally. If your patent is granted, then you can license out the right to employ your patented system to anyone you like, under whatever terms you choose.

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    Please note: There is no international patent protection, you need to apply for patents separately in each jurisdiction. There is a process where you can apply in one jurisdiction first (the priority filing) and based on that you can go for a PCT application as a basis for other international applications of the same application within 20 months max. So no need for simultaneous applications! And the patent application does not really help. The patent needs to be granted (might take years) in order to have exclusive rights. Feb 16, 2023 at 7:18

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