[LINK] Is it unethical to infringe a patent?
gramadan at umd.com.au
Thu Aug 17 23:23:25 EST 2006
Brendan Scott wrote:
> Hi Geoff
> Geoff Ramadan wrote:
>> Brendan Scott wrote:
>>> Gordon Keith wrote:
>>>> On Thu, 17 Aug 2006 12:06, Brendan Scott wrote:
>>>>> (a) would it be unethical to infringe a patent? (eg: exercise a patent
>>>>> without the permission of the patent holder)
>>>> Knowingly or unknowingly?
>>> The law doesn't make that distinction in determining whether an
>>> infringement has occurred (because when sued, everyone would plead
>>> ignorance), on what basis should the question make that distinction?
>> I thought you were asking a question about "ethics" not "law".
> Well, since neither patents nor infringement exist in the wild, it is hard to avoid having an element of law in the question.
>> I also had he same initial thought (Knowingly/unknowingly)
>> As a design company, I would feel unethical in knowingly infringing on
>> some one else's patents as well as being concerned about putting the
>> company at risk.
>> If we designed something that infringed on a patent unknowingly, then I
>> would have no ethical issues. I see the onus on the patent holder to
>> protect their interest as it would be impossible for us check "possible"
>> patents infringements when we design things.
> re impossible to check:
> Why? Is that an opinion the result of practical experience?
1) there are plenty of search tools on the net to check patents. Its an
issue of time and also what are you checking for? What is patentable is
not always that obvious. I am always amazed of what can get patented.
2) we do use patent searches on occasions when we are looking at new
technology and are interested in the research and outcomes to date.
3) however, I if we develop some innovative technology that we thought
was patentable (by us or some one else) which would form part of the
key product offering (i.e. it was primarily based on the patentable
innovation), we would do a patent search. If we found it had been
patented we would see if we could get around it or make some changes, or
try a different approach.
>> However, in practical terms, it would be an issue of risk assessment
>> that would determine if we would make the effort to check patents.
>> Also thinking about it, I would have no ethical issues in infringing a
>> patent that we thought was trivial or unworthy of being patentable in
>> the first place! (I can think of some examples of this)
> So: infringement by itself is not sufficient then in your view? (because it may be unknowing, or it may be of an unworthy patent)
As mentioned, it's an issue of risk assessment. A key part of this
assessment would include how important the innovation was to the product
offering, or how much "content" it contributed. If high, then you would
not want to infringe: knowingly or unknowingly.
Other considerations would include volume and markets. We do a lot of
small innovative projects, some of these innovations may be patentable
or we may be infringing existing patents. Given the volume and cost,
they are nor worth protecting or investigating.
> Is patenting relevant? If someone had a great idea that they let slip without patenting by accident or poor advice, would it be unethical (as opposed to illegal) to exploit the idea?
It would depend on how "innovative" the idea was. For example, if it
involved some considerable technical know how, then I would consider
If the idea was novel (but still patentable) and likely to be developed
anyway (eg. an idea that did not require research or development), then
you might consider this fair game.
> Can I complicate this further?
> If the government issues a compulsory licence over a (worthy, well known) patent, at a price less than what the patentee wanted, would it be unethical to take the benefit of the compulsory licence or should you pay a premium to the patentee to work the patent?
I think the patentee should receive the same overall benefit from the
licence to the same or better level of what he would receive prior to
the compulsory licence.
This may mean that the patentee may receive a lesser value say on a per
unit royalty basis that he was otherwise asking, but due to increased
"volume" resulting from Government involvement and "promotion" results
in the same or better overall income.
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