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I'm working with hardware from a company that is very serious about intellectual property protection. There are over 2,000 patents filed on the technology this hardware enables.

The hardware is intended to be used with software made by the same company. It is also highly protected by patents/copyright etc.

I am currently working with an open-source software that can be compiled in such a way as to work with this very closed-source hardware.

What legal rights might this company have to restrict me from developing my project? Note: I am not profiting from it, but would be interested in hearing how/if that might affect the legality.

My gut feeling is that, for example, my laptop might be made with closed-source hardware and run patented software, but I could still use it like a frisbee if I choose without risking infringement. Isn't this the same situation?

Thanks for any thoughts!

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  • If you used your laptop like a Frisbee, wouldn't you run afoul of the ubiquitous, "It is a violation of Federal law to use this product in a manner inconsistent with its labeling." ;-) – B540Glenn Feb 22 '19 at 19:28
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Developing and using such software only by yourself/friends/family is fine: the hardware is yours and the vendor has no legally enforceable way to dictate you in which way to use it for personal purpose, what software to run etc. See this question/answer for details.

However, if you decide to publish your open source software you may get into legal trouble. The reason is that the hardware vendor wants people to use its software, and it will incur losses if people stop doing this and use your software instead. Even if its closed source software is free, it still benefits from people running it in a number of ways, and its losses will be quantifiable and claimable through the courts.

Whether or not the vendor actually sues you will likely depend on how many people will be using your software instead of its.

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  • Thank you @Greendrake for this answer. I'm leaving the question open for a bit in case anyone has other info to add. Are you, by any chance, able to point me towards some particular legislation on restrictions towards using protected technology in unofficial ways? – Jess Feb 22 '19 at 13:45
  • This seems like opinion to me. – Sean Houlihane Feb 22 '19 at 14:54
  • This answer relates to practical issues but does not address what the legal rights of the manufacturer are, if any, that might conceivably by violated. – George White Feb 22 '19 at 21:35
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    "However, if you decide to publish your open source software you may get into legal trouble. The reason is that the hardware vendor wants people to use its software, and it will incur losses if people stop doing this and use your software instead." Simply incurring losses does not a claim make. You can't sue someone simply because they're competing with you. Do you have legal theory that would support a lawsuit? – Acccumulation Feb 22 '19 at 21:56
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    @Acccumulation The assumption is that the hardware was sold with such terms that prohibit tampering or installing software other than the intended one. Using your own software would violate those terms, so it won't be just competing. Of course if no such terms exist then you can publish your software. – Greendrake Feb 22 '19 at 23:11
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There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal).

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Patents cover specific structures or methods. Regarding patents, the question is whether or not you will use, sell, offer for sale, make, or import something that has the claimed structure or performs the claimed steps. If a patent is specific to the hardware, you are just using off the shelf hardware so a hardware-only patent is not an issue for you. If a patent covers the hardware and software meaning together they have a novel structure of perform novel steps, you might also be ok unless the hardware plus your software has the same patented structure or performs the same steps. If the combination of their hardware and your software does something different than what their hardware and their hardware does, you probably will not be stepping on their patents.

It is possible that the original product comes with a shrink-wrap license or some other restriction you have implicitly agreed to regarding the allowed usage of the product. It is possible that to replace their software you need to violate some DRM system. Otherwise the "intended use" is not relevant.

Regarding the idea that they may be motivated to come after you because you took bread from their mouths; it seems that your thing requires their thing and if you did make and sell 100 of your things you would have bought 100 of their things and they have not been deprived of revenue. That assumes their software and software are not sold independently.

Regarding just doing something for you own use, patent laws do not have a "fair use" provision like copyright laws. Of course no one is going to bother you but someone using, making, etc. it for themselves can still be patent infringement.

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