[LINK] Is it unethical to infringe a patent?

[rchirgwin at ozemail.com.au]

Brendan Scott wrote:

>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. 
>  
>
"Infringement" is only a breach of the law if (a) the patent holder 
acts, and (b) a court agrees. Hence the strong onus on patent holders to 
take action, and if they ignore a breach of a patent, why the court may 
extinguish their rights.

> 
>  
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>>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.  
> 
>  
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>>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. 
>  
>
Which bit's wrong? The only body empowered to state that the law has 
been broken is the relevant court. The infringement is not an 
infringement unless the court agrees. If no action is taken, any 
allegation of infringement remains just that: an allegation of 
infringement.

> 
>  
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>>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. 
>  
>
Nothing confused. I was referring to the status of property, not the 
nature of the remedy. An infringement regarding real property may be 
pursued by the Crown, in some cases, prior to complaint by the owner - 
yes, under the criminal law, a point so bleeding obvious I didn't think 
it worth the words to explain - and an infringement of patent will not 
be pursued by the Crown unless a patent holder chooses to act. My point 
is not that criminal law is different from civil law, but that the 
different treatment of property versus patent (criminal vs civil) 
indicates how the law considers the status of the two creatures.

Since exposition is needed: if the police recover stuff from a warehouse 
robbery even though the warehouse owner didn't know it was stolen, they 
are still empowered to act - the owner will, when found, be asked to 
identify the stuff, and later on the court will ask for proof as part of 
establishing the case, but the Crown will begin to act in advance of 
discovering the owner (complainant).

A court, however, will not decide "we have discovered you infringing a 
patent, the Crown will commence proceedings while we try and find the 
owner of the patent."

RC