[LINK] Is it unethical to infringe a patent?

[Brendan Scott]

rchirgwin at ozemail.com.au wrote:
> 
> 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

On that analysis the infringement occurs when the court gives judgment.     

> take action, and if they ignore a breach of a patent, why the court may
> extinguish their rights.
>>
>>> 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.

As far as I'm concerned that's unsustainable.  If you steal someone's care it is still illegal even if they can't trace you.

>>> 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

All of it.  

> 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.

You are identifying the existence of rights with their enforcement.   

>> 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.


No you are clearly saying that "The infringement is not an infringement unless the court agrees." which is unsustainable for the same reason something is stealing despite it not going to court and despite the crown not pursuing it. 


> 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).

Lovely, but a crime was committed whether or not the police recover stuff and whether or not someone identifies it. I can't see how you could possibly argue otherwise.  For the same reason an infringement occurs whether or not anyone takes action over it.