Navigating Patents in an Open Hardware Environment

In the past few decades the patent environment has grown increasingly opaque and uncertain, to a point where entrepreneurs face a real risk that their products may infringe existing patents. These conditions constitute a source of anxiety for entrepreneurs and tend to place a chill on product innovation and commercialization. In response, various defensive mechanisms have emerged, which are intended to shield companies from the risk of patent infringement. This chapter discusses several of these mechanisms, including defensive publication, patent pledges and open patent agreements. Their legal basis and strategic considerations are examined from the perspective of potential users who are unlikely to build a defensive patent portfolio of their own: start-up entrepreneurs and open innovation communities. While use of these instruments does not achieve full immunity from patent infringement, users may gain freedom to operate for specific products, and thus reduce or even eliminate the risk of patent infringement.

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