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What exactly are "Design Rights" ...

Posted By:
Nick Jones
4
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#1 Posted: 11/18/2009 14:09:32

We constantly see references to “aircraft design rights”, but I’d like to know exactly what these rights are …  and I think this is especially important to EAA members since we are involved with plans-built designs, replicas and designs based on other designs etc.

I have a little (enought to dangerous?) experience with patents, trademarks and copyright, and I’m sure I’m missing part of the picture.

To be clear, I'm not talking about "what is right" and "what should be", but more how the issues would be viewed in civil courts.

Here's what I think I know ...

Utility patent rights can apply to novel design elements of an aircraft, and a license would be required for any use of the invention for use in any aircraft.

Design patent rights can apply to the aesthetic appearance elements of an aircraft design, but specifically do not apply to non-commercial or experimental uses, and do not apply if the design element is driven by functional need.

Copyright certainly applies to drawings, books and other written material, but does not apply to newly created books and drawings of the same physical aircraft or components.

Registered trademarks protect the names of companies and aircraft model names.

Trade secrets are somewhat protected (to what extent?), providing reasonable efforts are taken to ensure confidentiality (non-disclosure agreements).

In the case of certificated aircraft, the type certificate is the ultimate gatekeeper of the right to manufacture a design, but this does not apply to experimental aircraft.

I have seen cases where design drawings and documentation are licensed not sold to individuals, with the right to build one example of the design, but it seems to me this would not apply to anything other than the printed materials (i.e. not the finished airplane) and would bind only the licensee in any case.

These legal protections do not seem to fully cover the moral rights of a designer to be the sole beneficiary of ttheir efforts.

Here are two examples to consider:

  1. Person A develops a completely new aircraft design, produces drawings (non-published), builds a prototype, registers a trademark and starts selling kits.
    Person B examines a finished aircraft built from a kit, produces completely new drawings and starts selling either plans or kits without using the original drawings or trademark.
    From a moral point of view it could be said that Person B has taken advantage of Person A’s efforts without compensation, however Person B has not violated copyright, patent or trademark, and used only publicly available (i.e. non-secret) information. In this particular case, I can imagine that the general public would not view Person B kindly.
  2. Same as example #1 However, Person A is no longer selling the design. In this case Person B might be viewed as providing a service to homebuilders who want to build replicas of the original aircraft, but Person A may still be in business, and may view replicas of an older design as loss of business for newer designs.
    Is the answer the same if the design is a Piper J3 Cub, a KitFox IV, a Cessna 170, or a P-51?

It is not my intent to start a flame war discussing specific cases, or accusing individuals of "stealing" or copying  designs. I just want to better understand the legal implications of building hostoric (or not so historic) replica aircraft, or making plans available to build replicas.

 

 

 



John McGinnis
Young Eagles Pilot or VolunteerHomebuilder or CraftsmanAirVenture Volunteer
201
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109
#2 Posted: 11/19/2009 01:16:08

Nick,

Interesting post!

Particularly for new aircraft designs, a large number of people may have substantial financial interest in restricting competition for the revenue streams made possible by an original design. Various means are available for doing so, including those in your list. How effective are they?

That depends.

A utility patent is certainly better than a design patent. It's also far more expensive to prosecute and defend. Design patents have no specific claims and do not teach a specific invention. The specification and claims of a utility patent distinguish a valuable intellectual property from a worthless piece of incredibly expensive paper. What do they say? What do they teach? What do they protect? Sometimes, next to nothing. Usually, a small key making something easier or better. Rarely, an entire field of dependent technologies.

None of this answers the question of how well they protect, since this is a legal question subject to legal argument. How much money do you have?

Getting good claims is hard enough, but the fact is that aircraft development is a big-money game. That means that a company involved in a patent rights dispute could have a huge advantage over a poorly financed patent holder because they can afford the litigation, which can literally run into the tens of millions of dollars. On the flipside, if a patent holder prevails in court, an infringer can be held liable for treble damages. Goliath companies lose big money if David lands a direct hit. Many companies therefore move very carefully when there are design rights involved, and it is usually to their advantage to purchase any rights subject to possible dispute.

Copyrights, trademarks, and trade secrets do far less to restrict competition for the revenue stream. Generally, the protections afforded are not as defensible, but nor are they as critical to business. Issues arising constitute a nuisance for the parties rather than a complete roadblock.

Your two examples illuminate the true heart of the matter. A system of laws tries, imperfectly, to deliver a defensible justice with regard to right and wrong. People are already equipped with a moral conscience often quite superior to the application of such laws, and as a result, things which are conducted in the bright light of public scrutiny tend to work out fairly. I must confess that the open-source 'Google method' takes more than a little getting used to outside of its abstract origins, yet the bottom line is that we as a society want innovations to suceed and to reward their developers. We also want diversity and improvement to drive down costs.

If your question concerns our ability as individuals to copy something in the public domain for personal use, history suggests the powers that be will be lenient if not even supportive. If our intent is to steal and clone something without paying the same costs for their independent invention and development, then to profit from its sale in competition with its inventor, one has acted unfairly. Society tends to recognize that going first is incredibly hard. Copying the 'now-obvious' is easy. If the exposed perpetrator shows no conscience in the matter, they will be severely treated.

I don't live in the fantasy world where fairness reigns supreme, but what you are asking has only two kinds of response: one based on the specific application of changing laws by various entities to the specifics of a particular case; the other to the principles keeping a balance between profit and exploitation. The finest protection and defense of a good body of work is its endorsement and adoption by the public. The challenge of change is to modify the terms of its protection as that adoption becomes a public asset.

 



Eric Peterson
Homebuilder or Craftsman
49
Posts
6
#3 Posted: 11/19/2009 19:31:42

Nick,

    Another example is the Polliwagen, which went out of business 15+ years ago. but copies of the plans are available on the internet on CD's for a few bucks or on another website they are available free for download.

    I've never seen this subject brought up before, and it does bother me. I don't think Joe Alvarez(designer) was ever asked permission to do this.

                                                           What can you do,   Eric



David Deweese
Young Eagles Pilot or VolunteerHomebuilder or Craftsman
61
Posts
21
#4 Posted: 11/19/2009 21:03:03

Example 2 brings to mind the Cri Cri: plans are downloadable from the internet, though further browsing seems to indicate that designer Michael Colomban has personal reasons for not wanting to sell plans for his design in the U.S. This adds an international variable to the legal equation.



Mike Whaley
Homebuilder or Craftsman
10
Posts
2
#5 Posted: 11/22/2009 20:24:55 Modified: 11/22/2009 21:06:13

I know of a couple of folks in the model airplane world that had very big companies (Lockheed and Cessna) come after them for "copyright" issues. In one case, the company (two guys, cottage industry) was convinced to sign a licensing agreement (paying thousands of dollars IIRC) with no reciprocity, and discontinued their models of Lockheed WW2 airplanes as a result. Now, these were balsa sheet profile RC model kits, not exactly "exact" scale planes. Another guy got hassled by Cessna for a model of the C-140.

 

Was this legal? Maybe. Was it morally right? Absolutely, positively not. Did it harm the individuals who only wanted to honor these historical aircraft with a product that required people to perform a large amount of skilled assembly (ie, wasn't an "off-the-shelf replica")? Yes. Did these companies severely damage their reputation in the eyes of everyone who heard about it? Very much so. Did it have any effect whatsoever on them as a result, and did their management care one bit about this? Not at all.

 

There's a guy (goes by "Uncle") selling pirated model airplane plans on eBay for designs which are largely NOT "orphaned". I once looked at his feedback and prices and calculated that the guy made $20,000 per year, selling his clearly pirated plans. He's such a scumbag that according to him, he even "improves" the plans... meaning, he just edits out the copyright notices and puts his own "I own this, copy it and I'll sue you" message in it's place!

 

Sad fact is, that even if most folks understand the work it takes to produce something as complex as an aircraft design, there's a bunch of folks out there in Internet-land who think nothing of buying a cheap pirated copy of it, and when it doesn't go well because they have incomplete info, they will still blame the designer for their problems. A designer cannot sue everyone who tries to abuse their intellectual property (well, I guess the major aircraft companies can...) I used to work for a homebuilt aircraft company, one with a much less strict tech-support policy than some (any owner of our aircraft was welcome to call and ask questions), and yet, another company decided to enter into direct competition with us on fuselage kits. I suppose that had questions about licensing or design rights come up, they apparently counted on being protected by the expense of the legal process. Nearly all builders still chose to come directly to us for the components they were offering, and when they asked us about the other company, we just said (completely truthfully) "That company has got nothing to do with us, we know nothing about them, and they didn't ask us about it. So if you have problems with their products, we won't be able to help you sort it out, you'll have to deal with them on it." The sad part is that had they approached us and asked about collaborating, we very well might have been very interested in working out a deal with them to have them make the same product, have our official support, and cross-market (this was in a tiny, specialist niche within homebuilding, so those kinds of things are a big deal). As it was, they basically just slammed the door shut on all that, and I even heard rumors (never had confirmation that I knew of) that their product was based on an old set of plans that had been changed somewhat for all current builders. I no longer work at the company but I strongly suspect that the copycats might never make their investment back since the word seemed to get out that it wasn't an "approved" product and several builders told us they felt the whole thing seemed to them to have been done in a somewhat "subversive" manner of sorts. Was the product OK? Very possibly. If it worked as well as they claimed, it could have even been a "great" product. But the fact we didn't know that, and had no knowledge of the company beyond seeing them start advertising our own products for sale, well, many in our customer/fan base didn't seem to see their methods as a positive sign as far as I could tell. It was less of a legal issue than a moral and practical one, really.

 

I'm not a lawyer or anything but I think that counting entirely on the law to settle these questions is just plain crazy. So is counting on people to do the right thing... in both cases, the craziness comes from expecting either aspect to produce absolute results, which it seems that many folks nowadays do in fact expect. You must understand that at best, MOST folks will recognize the hard work it takes to produce something worthwhile... and unless you're completely unreasonable in your conditions, these folks will probably be fairly supportive of your efforts. Sadly, there will always be a few jerks who will inevitably take advantage of your work for quick personal gain at your expense... and there will always be a few less scrupulous (or downright cheap) people who will buy into them as well. How to best handle it is a very personal decision and I dunno that there's ever going to be a single good answer to it. Common answers range from "sue everyone who speaks the airplane's name without paying a licensing fee" to "make it free or nearly so, and there's no point in someone else re-selling it" to "just stay uninsured and keep the company tiny so there is no incentive for the survivors to sue", and everything in between. In the end, though, the only absolute is that ONLY the lawyers ever really come out ahead financially in such disputes if they get to the point of legal action... and they always win something... regardless of which side they're on!