[LINK] Is it unethical to infringe a patent?

[steve jenkin]

Brendan Scott wrote on 17/8/06 12:06 PM:
> Just an open question really.  Assuming that patents are a form  of property:
> 
> (a) would it be unethical to infringe a patent?  (eg: exercise a patent without the permission of the patent holder)
> 
> (b) would it be a form of stealing?
> 
> 
> I'm interested in views generally but, of course, since few people actually believe patents are (or even should be) a form of property, I'm particularly interested in the views of anyone who does so believe. 

I believe the ownership of a patent and the willingness and means to
enforce it, create 'a property', as distinct from the patent itself
being property.

The arguments raised already underline that we don't have a common
definition of "ethical" (and probably "ethics").  One defn not entirely
relevant here is: Ethics are what you do when nobody is looking :-)

======================================================
Part A: Patents as Commercial Tool/Instrument

Patents are window-dressing, nice to have, but intrinsically worthless
or meaningless - but ownership of them is *not* either.

If you own/control a Patent and:
 - have means/ability to enforce it,
 - have the will to enforce it, and
 - are able to ascertain infringements
then they are a real viable commercial weapon.

The external perception of the IP owners or licensee(s) is very
important in modifying the behaviour of others. And the perceived
ability to play "deep pockets" [affording the law suits].

Do you think Microsoft will "vigorously defend" all its Patents?
What about Red Hat?

What if I (personally) owned an important/useful patent.
Do you think MSFT would stop for a moment in using it without licensing
it?  What if IBM was a *licensee* of mine?  I'd expect even the Chinese
would take pause...

[I introduced two different notions there:
 - patents being "useful/important" or "trivial"
 - groups of people in commerce with low compliance on patents.]

What are the "ethics" of (sub) cultures that routinely ignore (all) IP?
I believe they have a consistent world-view and it probably has them
acting "honourably". They may defend their position by using "public
benefit"...

Would these same people defy a well funded "aggressive" IP holder who
could take direct action in their jurisdiction?? Most likely not...
I'd suggest their mindset is more commercially based than ideological.
Richard M Stallman might rather go to jail than compromise his belief
system.  I don't think most cheap rip-off merchants would.

But Patents are only one commercial instrument. There are many software
companies that rely on keeping their "trade secrets" secret, rather than
 file Patents.

======================================================
Part B: Covered Material, Searching, Disclosure and Informing

If you author Software, especially for Own Use (personal or in-house),
your focus is on solving problems, not checking for prior IP.

In fact, *reuse* is an important and vital Software Engineering concept.
Causing software authors to interrupt and break-up their
thinking/creative processes to check for possible IP infringements will
destroy the process.

Especially in Software Production, people independently discover the
same material.  I'd suggest that if you can *prove* via Lab Notebooks
that you independently discovered, not intentionally reverse engineered,
some material, you should be allowed to use it license free in your own
works - whether for profit or not...

If you own a Patent, I think you should be obliged to inform
'Practitioners' of its existence and accurately describe what is and is
not covered - so reasonable people can steer clear of problems.

I think patents should be retrospectively rejected if they are declared
to be "trivial", i.e. Obvious to those Skilled in the Arts...

Patents should be meaningful contributions to human knowledge.


======================================================
Part C: Commercial Practice
Licensing, Fees, "Free for Own Use", Submarining

- It should be mandated that all patents are licensable
- License fees should be appealable.
- License fees should be *reasonable*.
  and some sort of Industry practitioner agreed scales for fees
- If you build something yourself for your own use, it should be
  possible to get a Free License...

I think "submaring", the practice of not persuing patent violations as
early as possible, is highly unethical and immoral.

I'd like to see provisions in Patent Law something like:
 "if you don't persue a patent violation as soon as you become aware of
it, then you are granting an implicit license for that and all
derivative uses"
and
 "if you purposefully or negligently don't practice regular, reasonable
scanning for breaches of your monopoly, then you forfeit the right to
enforce it"



======================================================
Part D: Suitable Patentable Material

I don't believe Process or Software Patents should be allowed.
I strongly believe that both of these should be *able* to be protected,
and should be subject to some sort of IP law so they can be licensed,
but Patents aren't 'it'.

If Mathematical Formulas and concepts aren't patentable material,

======================================================
Part E: Software Vendor Obligations

I'd like to see *all* merchantised software subject to escrow.
And if the vendor ever drops support for a product/version, then the
code is *automatically* released into the Public Domain.
Not sure how to handle critical sections of code that survive into
supported versions - but I'm thinking "Caveat Vendor" :-)

This is much larger than patent protection, and explicitly aimed at
redressing the power & rights imbalance between vendors and consumers.

If you contract someone to build a software system for you, it's normal
practice for the codebase (& tools?) to be placed in escrow for you.  If
they fail (commercially), then you don't get screwed as well, but can
hire new people to complete or support your tool.

It's a reasonable consumer protection to require the same benefits for
commercially sold, especially mass-market, software products.

Microsoft has placed a whole bunch of Win-95/8 users, who bought the
software in good faith, in a very poor position with the current
security problems (unforseeable!).  Microsoft has walked away from the
code base for good economic reasons - but there is no reason to hang
their many loyal customers out to dry...


> Brendan 
> 
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> 


-- 
Steve Jenkin, Info Tech, Systems and Design Specialist.
0412 786 915 (+61 412 786 915)
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