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We have a simple 3D-printable object, which can be used as a medical aid. We would like to publish this object free to use to the public. We would like to keep this object and further revisions and variations of it free and freely distributable. What we are afraid of, is that a company may create a patent around it, and prevent the use and distribution of our tool.

Is publishing under one of the CC licenses enough? Which one?

We are no lawyers, so sorry if this is a bad question.

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    I don't think patents are valid if the thing they're patenting already exists.
    – user253751
    Mar 10, 2023 at 19:08
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    @user253751 As you can see here in this article published by WIPO it is not so easy to invalidate a patent once it is granted. As the article states "Patents are granted with a presumption of validity." The mere existence of prior art (i.e. the thing that already exists at the priority date) is not enough to invalidate a granted patent, it is a lengthy and expensive process. Mar 16, 2023 at 14:20
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    @Martin_in_AUT Note that you don't have to actively invalidate the patent. You just have to know that if the patent holder sues you or anyone else, their patent can be declared invalid. Therefore, they won't do it. Unless they want to go through a length and expensive process to lose (which some patent trolls do). Across all of life, the threat of consequences of an action is usually enough to prevent the action from happening, so the consequences are rarely needed.
    – user253751
    Mar 16, 2023 at 14:23
  • @user253751 your rationale is only valid in a fight between equals, but it will not work the same if a SME stands against a large multinational inc. Especially if you just have a piece of hardware, but no publications. Mar 16, 2023 at 16:03
  • @Martin_in_AUT yes, SLAPP suits are a thing. note they don't even need a patent to do this. They can just pick a random patent from their patent pool and claim you're infringing it and you still have to pay for a lawyer either way.
    – user253751
    Mar 16, 2023 at 16:03

2 Answers 2

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You are touching 2 different topics with your question.
a) Which is the appropriate license for hardware?
b) How to prevent that someone else can get a patent for your device?

For a) you might want to study this Wikipedia page. For your purposes you might want to start with a look at the TAPR Open Hardware License. I believe that it is much better than the CC licenses for hardware because it was tailored for it and understands the difference between a description and the object made based on the description.

For b) you need to look at the concept of Defensive Publishing. Nothing ever will be able to prevent that someone files a Patent Application for a specific idea. But with a clear and specific description of your device, the advantages, the rationale behind design choices, etc. you will be able to create Prior Art which can prevent that the patent application will be allowed and that a patent will be granted. You could use the project documentation that comes with the 3D printable files for defensive publication purposes, or you could write a separate file / description, and for this description a CC license, e.g. CC BY-SA, would be appropriate. For more information about Defensive Publishing you might want to go to Patents SE, for example here.

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  • Prior Art isn't very interesting in a first to file regime, such as we find at USPTO and in many other jurisdictions. Apply early so you have the first filing date. Apply for a continuation if need be. Don't wait around until after there's a competing patent application.
    – J_H
    May 4, 2023 at 19:10
  • @J_H Prior art (if it surfaces during patent prosecution) will prevent that a patent application will be allowed. I have seen many US patent applications fail due to prior art from technical publications. The first-to-file-regime does not have anything to do with it. The OP was looking for a solution which prevents 3rd party patenting, and defensive publishing is definitely a cost-efficient way to achieve that (compared to the cost of patent filing and prosecution). May 4, 2023 at 22:32
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For something to be patentable, it must be innovative. You cannot patent something which is the same as something already published (under any license), because that is not innovative ("prior art exists" in patent language).

On the other hand, someone can take the idea of what you've published and build a patent around it so long as they don't take your specific implementation of the idea. No copyright license can protect against that - copyright and patents are fundamentally different. If you want to stop that happening, you need to get your own patent.

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    I don't quite grasp your meaning of "take the idea... and build a patent" in the second paragraph: isn't the existence of prior art sufficient to invalidate any patents on systems that existed prior to the application for a patent? Or do you mean they might take the existing device, improve on it, and patent their improvements? (If so, I do agree that is a concern, and could be controlled by patenting the underlying system as you suggest.)
    – apsillers
    Mar 8, 2023 at 20:15
  • @apsillers I was more thinking of taking the thing and building it into part of a larger system. Mar 8, 2023 at 22:40
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    "... you need to get your own patent." is definitely not a requirement. It would be correct to say "you need to create prior art", which can be done by publishing the idea. For example by 'Defensive Publishing'. Mar 9, 2023 at 7:51
  • @apsillers The existence of a physical device might not show up in prior art search during patent prosecution. Therefore it is likely not enough to prevent that a patent application is allowed. And after a patent is allowed it is a cumbersome and expensive process to invalidate a patent. Mar 9, 2023 at 7:55
  • Your last paragraph doesn't make much sense to me. Either the thing someone else developed is sufficiently innovative to patent or it's not. If it isn't, then it doesn't matter if you have a patent or not, it's unpatentable. If it is, then it doesn't matter if you have a patent or not, they can patent it, and you can't use it. Either way, everyone can still use whatever you made because nobody else invented it and you're letting everyone use it. Mar 10, 2023 at 6:55

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