[LINK] Is it unethical to infringe a patent?

[rchirgwin at ozemail.com.au]

Brendan,

Brendan Scott wrote:

>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)
>  
>
The answer is a simple "no", because the legal position (and an ethical 
position which flows from it) depends on the patent holder, not the 
infringer. If a patent holder chooses not to act upon infringement, 
there is no breach of the law.

Example: many IETF standards include techniques or inventions which are 
covered by patents. Products following those standards infringe a 
patent. However, the patent holder has chosen (and expressly stated its 
choice) to permit the infringement. There is, therefore, no ethical 
issue involved.

Now, if I'm "exercising a patent without permission", this carries the 
assumption that (1) I know the patent exists, and (2) I choose to make 
or sell something infringing the patent without permission.

Here, the ethical position is not cut-and-dried. The administration of 
patents puts the onus to act upon the patent holder. The patent holder 
has no grounds for action *before* the infringement, only after. In the 
absence of communication from the patent holder, I cannot predict 
whether the holder will or will not act. The infringement creates a 
recognisable cause for action, but in the absence of action, the law 
recognises no wrong (that is, it is a private wrong; the patent office 
does not seek out possible infringements and prosecute them without 
complaint).

In other words, the infringement is not illegal if the holder does nothing.

The question then becomes: Can the infringement be unethical if its 
legal status depends not on the infringer, but the patent holder?

This sheds some light on the fallacious "patents are property" argument. 
In the case of "real" property, the Crown (forgive the archaism but it's 
a handy term in a legal discussion) is empowered to act in the absence 
of complaint. If Brendan Scott were discovered in posession of stolen 
goods, the lack of a specific complaint (ie, the owner did not yet know 
the goods were stolen) would not mitigate his offence. In other words, 
the Crown regards the existence of property as something which does not 
depend on a specific act on the part of the individual.

>(b) would it be a form of stealing?
>  
>
No. It is an infringement of a right, if the patent holder chooses to 
act to defend his right. But it is not a form of stealing.

Equivocation is played by "patents are property" polemicists; they say 
"a patent shares some of the characteristics of property, therefore a 
patent is property." It's a threadbare argument designed to snare 
simpletons.

RC