[LINK] Is it unethical to infringe a patent?

[Brendan Scott]

Geoffrey Ramadan wrote:
> Brendan
> 
> Brendan Scott wrote:
>> Hi Geoff
>> 
>> Geoff Ramadan wrote:
>> 
>>> Brendan Scott 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)

[]

> 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.

Can you share: (a) an estimate of the likely cost of doing a search (do you do it in house, or engage a third party)?
(b) an estimate of the elapsed time involved in doing a search?  
(c) your general degree of confidence in any results?

[]

> 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.


Your analysis has been very supply focussed.  What about patents over inventions which affect the operation of your business (ie business process patents)?  Have you ever thought about doing a search for those?

 
>> 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 
> this unethical.
> 
> 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.

It's interesting you say this.  So you think the amount of effort that's been expended is relevant to the ethicality of exploitation?
 
>> 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.

This is interesting too.  In your view, there is an ethical equation which can be determined in the aggregate, rather than per individual?  


Would it be fair to summarise your responses as:

(a) there is an ethics to the exploitation of inventions (ie the thing a patent could be granted over) but, where an exploitation occurs without the consent of the inventor, the existence of a patent is neither necessary nor sufficient to determine the ethicality or otherwise of such an exploitation 

(b) knowledge is an essential prerequisite for unethical behaviour (this seems to be a commonly held condition)


Thanks


Brendan