[LINK] Is it unethical to infringe a patent?

[Brendan Scott]

rchirgwin at ozemail.com.au wrote:
> 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.


Well, no actually, there is.  If they don't act there may be no consequences, but there is an infringement. 

 
> 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.

No, they don't "infringe" because the patent holder has expressly or impliedly permitted the exploitation.  
 
> 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?

I think this is just wrong at law. 
 
> 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.

I think you are confusing civil with criminal liability.  If you take my watch with an intention to permanently deprive me of it and I choose not to sue you as a result (since, btw, it's broken), you have no civil liability, but that doesn't transmogrify your taking into a justifiable one. 


On review of the answers I think the question is one about whether the legal concept of patents has substantive moral content.   The responses seem to indicate that it doesn't - which is not to say that it is morally acceptable to work someone's invention without permission, just that whether it is patented is neither necessary nor sufficient.  (Although Vic's position on this is unclear)


Brendan