Can an organization build something for its own exclusive use, that is patented by someone else? Based on these two questions: Could a charity manufacture patented medications for free? Can I build something for personal use if it is patented? I suspect that the answer will be no, but I want to ask anyway just to get it directly. I hope to keep it more general than this, but for example: There is a conceptual design for a loudspeaker that is easy to manipulate in a simulator and gives impressive theoretical performance...and is patented by someone else. The owner sells finished products exclusively to the very high end of the professional market (if you have to ask, you can't afford it), and hobbyists have built their own designs using that concept for their own living rooms, claiming that the owner has given blanket permission to hobbyists for their own personal use. I've also seen someone with the owner's name on public hobby forums, who explains it in deep technical detail, and all of his posts are many years old now. So: Taking a cue from the hobbyists, what if an engineer/carpenter team were to design, build, and install one specifically for a non-profit organization where they both volunteer already? (the engineering and labor are donated, and the organization buys the materials) What if I were to design and build one myself to use in my own rig for profit? My understanding of the purpose of patents is to prevent the loss of revenue caused by someone else undercutting the inventor, probably because the someone else doesn't have to make up the expense of inventing it. In that framework, and given either of the situations above, it would certainly be a violation to sell it, because that customer might have bought it from the owner instead if there wasn't a cheaper option. But if the available budget clearly does not allow purchasing from the owner, and thus the owner would not have had a sale anyway (we'd use a different design that is available more cheaply), is it okay to make one (or several) personally or in-house for personal or in-house use, with the caveat that it is illegal to sell until the patent runs out? Of course, we can't outsource the work because it would mean that they would be selling to us and thus violate the patent themselves. It seems to me that it must all be done in-house, to even have a chance. So does that chance exist? Notes: It might seem like several different questions, but it's really the same question several different ways. Nor am I asking if it's okay to violate in a particular situation. I'm asking if the action in that situation IS a violation.
The relevant section of US patent law was already posted in an answer on one of the questions you linked, but I'll repeat it: 35 USC 271 (a): Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Merely making a patented invention is infringement; it isn't relevant whether you sell it. It is also infringement if you use it yourself, regardless of who made it or whether you paid them, or whether you would have otherwise bought it from the patent holder. There are some special exceptions for things like certain kinds of pharmaceuticals, but I browsed the rest of 35 USC Chapter 28, and didn't see anything that would appear to be relevant in this case.
First of all being the &quot;founder&quot; of a startup in no way implies that one wrote all the code of the startup's primary or signature app. The founder could have hires coders, or had partners, or used open source code. But let's make some assumptions. Suppose Alice has created a startup, and wrote the code for an application. Suppose Bob invested in the startup, and got 30% of the stock, What rights does Bob have to the copyright on the code? It depends entirely on what agreements Alice has made. Alice might have sold or assigned the copyright to her startup firm, call that F1, If so, F1 owns the copyright, and Alice can't reuse it without F1's permission. If Alice has retained the other 70% of F1, she controls it and can have it grant her whatever permissions she likes. But if she has sold or assigned a majority shore to investors, she will need to persuade the management of F1, or a majority of the shareholders, to grant her permission. Alice might have merely licensed the code to F1. In this case she retains the copyright. If the license was not exclusive, she can use the code as she pleases, but so can F1, in accord with the license. In neither case does Bob directly own the copyright, or a share in it, unless a separate agreement granted or sold that to him. But he has a right to a share of the profits, if any that F1 makes, and a right to vote on decisions that 1 makes, long with other owners of F1 If Alice never formally transferred or licensed the software to F1, she still owns the copyright and can do as she pleases, even if shew sold most or al of F1 Note that to transfer a copyright there must (under US law) be a written and signed document, one signed by the owner or the owner's agent. It must specifically indicate what copyright(S) it transfers. A purchase of an interest in a business does not suffice without such a document.
How can I find out whom the intellectual property now belongs to? For the patent, is this possible through the patent office? If it is a patent, the patent office; if it is a copyright, the copyright registrar. You could also look at the return from the auction in the bankruptcy court case file, which would control even if the patent office and copyright registrar records haven't yet been updated. You could also call the person who conducted the auction, or the lawyer who arranged for the auction, to ask. Often they would cooperate in telling you this information since a bankruptcy auction is, by definition, a public sale anyway, and cooperation might help them gain positive referrals from you in the future. If the assignee has not been changed in the patent register, is it possible to reassign the patent to myself, since the company has apparently neglected to do so? No. Doing this would be a form of fraud or embezzlement. The intellectual property became the property of the bankruptcy estate. If the bankruptcy estate is determined to have property not disposed of in the case, you would have to petition the bankruptcy court to have the remaining assets sold for the benefit of the creditors of the estate at fair market value. The Follow Up Questions I'm going to decline to answer the follow up question about how to arrange to purchase intellectual property from someone when you would like to own it, once you determine who the owner is. This is a more general question that applies to lots of circumstances and is as much a question of economics as law. There is an Ask Patents.SE forum, which might be a more appropriate place to ask that question.
Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display.
Non-Profits Need Not Have Owners But Must Have A Lawful Purpose Any non-profit company, for example, a 501(c)(3), is ownerless and can be run by a self-perpetuating board if desired, rather than having delegates that provide an outside source for new board members. In that case you have to set forth a purpose of the company or trust, to which its assets and profits must be used, and it must be managed in accordance with that purpose. You can also have a "private foundation" that is effectively ownerless, again with a designated charitable purpose. Generally speaking, the law limits how much compensation can be paid to officers and employees of such a company and restricts self-dealing transactions by such a company. You probably cannot create a valid trust or business with no beneficiaries and no designated charitable purpose which is supposed to merely accumulate its profits and assets. Ownerless Cooperatives Are An Oxymoron Your reference in this and other posts to an "ownerless cooperative" is basically an oxymoron. A cooperative is an entity owned by a class of people who have a contractual relationship with the entity (usually consumers or producers) who are the owners of the company with voting control and who are entitled to an adjustment of their transaction prices with the cooperative via a rebate or surplus check proportionate to the dollar volume of their dealings with the cooperative (Northwest Mutual, must rural electric companies, and most credit unions would be examples of consumer cooperatives, Ocean Spray is a good example of a producers cooperative). An ownerless entity is pretty much by definition not a cooperative. An excellent overview of forms of entity organization other than investor owned stock corporations can be found in The Ownership of Enterprise by Henry Hansmann. The Life Of The Law Is Not Math Or Logic Honestly, it sounds like, in your several posts on the subject, that you are attempting the hide the ball of an ulterior purposes which is material to the legality and organization of an entity. The law is not like science or mathematics. You can't prove a bunch of isolated propositions and then string them together logically. The law operates on an entire comprehensive "fact pattern" and even if every step of your chain of reasoning to an ultimately result is supported by legal authority, this does not mean that this will be the result you get when you put all of the pieces together. That kind of logical reasoning doesn't work in a legal context. The heading of this section is a paraphrase of a famous statement about the law by Oliver Wendell Holmes, Jr.: The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. from "The Common Law" (1881) at page 1. Blockchains Are Not The Legal Innovation That They Claim To Be Using blockchain technology to manage "tokens" of voting control in an entity is ultimately completely irrelevant. Blockchain technology is just another alternative to certificated shares, shares kept on an ownership ledger, or shares kept through secondary shareholding intermediaries or brokers. The technology used to keep track of voting control or economic ownership is irrelevant, and some common entities (e.g. homeowner's associations) have ownership that is basically determined via a crude public blockchain called the county clerk and recorder's records. People who think that blockchains provide any significant legal innovation into anything (e.g. here) are fundamentally misguided and typically are not people familiar with the law who have misconceptions about how the law works. Also, contrary to the hype, blockchains are not fraud-proof and indeed, involve serious systemic risks of instability because an error in an old transaction can disrupt lots of current claims. Claims such as those made here that blockchain transactions are irrefutable are naive and basically false. A block chain is a bit like a real property record system without an adverse possession rule to make ancient glitches irrelevant. Moreover, blockchains are a solution to a non-problem. Authenticating ownership and voting rights, economic entitlements, and corporate actions is something that has never posed a very significant economic problem ever since writing was invented. These are economic problems that were already effectively solved in the days of the Minoans, and widespread ownership of well authenticated entities by numerous ever shifting groups of owners was a problem well in hand by the days of the British East India Company. Anonymous Ownership Or Contribution Records Are Illegal Truly anonymous ownership, however, is legally prohibited, even though ownership need not be made a matter of public record. In the case of for profit entities, by securities regulation which requires disclosure for purposes of exercising voting rights and for disclosing large blocks of ownership as required by law, and for purposes of tax law. In the case of non-profit entities, it is prohibited by virtue of laws regulating private foundations that impose tax requirements when certain concentrations of contributions come from a small, related group of people. In the case of political organizations, campaign finance laws require disclosure.
It may be useful to draw a distinction between the NFT and the Art referenced by this NFT. There is no intellectual property in an NFT itself because an NFT is not a creative work, invention, or trade secret. Ownership of the NFT. As far as I'm aware, no laws recognize the Ethereum blockchain as an arbiter of ownership. However, NFTs and other “crypto” assets seem to be recognized as property. Thus, it can be the case that lawful ownership diverges from the ownership records on the blockchain. In the referenced scenario, someone gained control over an NFT but likely did not receive the property rights in that NFT (i.e. stole it). License to use the Art. The “Bored Ape Yacht Club” terms define ownership of the NFT purely in terms of the Ethereum blockchain, and ignore legal ownership: Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network The blockchain-owner of the NFT is then granted a license to use the Art via these terms. This leads to the following conclusions: There are no intellectual property rights in the NFT. Any intellectual property rights in the Art are held by Yuga Labs LLC, the company behind the “Bored Ape Yacht Club”. Nothing in the terms transfers ownership in the Art. Yuga Labs LLC grants the blockchain-owner of the NFT a license to use the Art. Here, this means that the thief held the license, then after the sale the subsequent buyer. Yuga Labs LLC does not grant the legal owner of the NFT any rights, in case the legal owner and the blockchain-owner are distinct. Of course, nothing would prevent Yuga Labs LLC from also granting a license to the legal owner of the LLC. They can still do so retroactively, as their license grant to the blockchain-owner is probably not exclusive. But I would be surprised if they would do so, since it would shatter the “NFT = Art” and “Blockchain = Ownership” illusion that their business model relies on.
The software being free and open source has no impact on whether it infringes any patents or violates any copyrights. Copyrights attach to fixed representations of creative work in a tangible medium (e.g., the actual code and graphical elements of the software in question). As long as you aren't copying the copyrighted work of someone else, you should be in the clear. So, if you write your own code from scratch, or rely on code that you're allowed to use (e.g., "free" software with a permissive license that allows it to be used freely), you should be fine. On the other hand, if you copy a chunk of code that you aren't allowed to use, and then change the variable names so that it's superficially different, you're likely violating someone's copyright. Patents are a much more difficult question. To determine whether you would infringe any patents, you would have to read the independent claims of every patent that might be related. If you perform all the steps of any one of those claims, then you are infringing that claim (and therefore, the patent in which it is found). Unfortunately, this is much easier said than done. First, it may be difficult to search for all the potentially relevant patents, and once you've found them, there may be far too many to read. Second, claims are written in a type of language that is specific to patents, and someone without experience in patent law may not understand them correctly. Finally, the terms in the claims may not take on their plain English meaning, but rather may have been defined by the language in the rest of that patent, so it's possible that you might incorrectly think you were in the clear based on a misunderstanding arising from that. All that said, it may be best to go ahead with implementing an idea and then waiting to see what happens. Chances are that the implementation will arguably infringe some patent in some way, no matter what's done. But chances are also high that there will never be any worrisome enforcement action taken against it by a patent owner, simply due to the difficulty and expense associated with enforcing patent rights.
The whole purpose of a patent is that the contents of the patent becomes public knowledge, in exchange for a time limited monopoly. Therefore you are allowed to do anything, since you are not just allowed but expected to examine the patent in order to improve on it, except that you need a license to sell or give away products implementing the patent as long as it is valid. The only thing to be careful about is that by publishing source code, you might be enticing others to infringe on the patent, so I'd recommend not to do that without advice of a lawyer. PS. With software, the interpretation of "making" software in patent law may be a bit surprising. There was a major case between Microsoft and AT&amp;T about that. The software developer isn't "making" the software. The build engineer putting everything together isn't "making" the software. The CD manufacturer making a million copies isn't "making" the software. The person installing it on their computer is the one who makes it.