Open-Source Hardware Licenses?

Open source concepts are not only for software. Hardware designers are allowing users free rein to build and tinker with product designs, with interesting results.

From the Make Blog, via Slashdot, comes the story of Mitch Altman, inventor of one of the most useful devices known to man: the "TV-B-Gone," which is a portable device that will turn off dozens of brands of television sets from many feet away. Great if you are the type of person who likes to anonymously enrage a crowded sports bar just as that overtime field goal kick is midway to the uprights.

Altman patented his idea, but decided to make a kit available to the public and is happy to hear from those who improve his design or modify it in interesting ways.

I discussed something similar recently, in my post about Dr. Johnny Chung Lee and his Nintendo Wii controller ideas. What I haven't considered is what kind of a license would cover the intended grant of rights.

The difference between open-source software and open-source hardware lies in the nature of the rights involved. Open source software (which includes firmware) is grounded in copyright. The copyright -- and the rights associated with the copyright -- arise and exist as of the moment the software is created and fixed in some tangible medium of expression.

Rights to a device, on the other hand, are grounded in patent. The patent is a discretionary award from the sovereign, not a right that exists ab initio. While the inventor can certainly create a document that is called a "license" to a pending patent application, until that patent issues the agreement is really just a contract, enforceable only by its terms (as opposed to being enforceable by way of patent law). Once the patent issues, the license would have both contractual and patent law on its side.

Such a license could make enforcing typical open-source conditions interesting -- what is the tangible analog of freely distributing modified code? Making the modified product design freely available, while still allowing the licensee the right to make and sell the modified product at a profit? And what of the modifications made to the original product? Would the license permit the licensee to patent the improvement, but require it to license the improvement on the same terms as the original?

I'm aware that there have been a few stabs taken at creating open-source hardware licenses, but the ones that I've seen seem to be grounded in copyright -- in particular, focusing on the specifications that are being licensed as opposed to the product itself. And I'm of course aware that many physical products contain a lot of software, without which the products would not operate. So for some products, the software/firmware license may suffice. But I'd love to hear if something that considers the patent issues discussed above has been proposed.