[LINK] Is it unethical to infringe a patent?

[Geoffrey Ramadan]

Brendan Scott wrote:
> 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?
>
> []
>   
We don't do many patent searches but when we do, we do it in-house, 
which typically takes 30 to 60 minutes.

>   
>> 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?
>   
Our IP development is mainly in micro-electronic product design not 
processes, so this is not relevant.

My guess is that most companies would tend to use "trade secrets" rather 
than "process patents" to protect themselves. I can think of a number of 
examples of this.

>  
>   
>>> 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?
>   
yes - I mentioned before about "trivial" patents, which I would also 
include patents that should not have been granted patents in the first 
place would be another example of this.

I don't see it as being unethical, as I would argue that patent holder 
would have trouble actually protecting their patent.

>  
>   
>>> 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 
>   
I would agree with this, the ethics should not not change based on if 
the invention was patented or not. However, I would assume a patent 
would allow greater redress options if such exploitation occurred.
> (b) knowledge is an essential prerequisite for unethical behaviour (this seems to be a commonly held condition)
>   
yes - though I understand in law, ignorance is no excuse, but is this 
ethical to make such assumptions (though I can understand in practice 
why it needs to be so)

Reg
Geoffrey Ramadan

>
> Thanks
>
>
> Brendan 
>
>
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