[LINK] Is it unethical to infringe a patent?

[rchirgwin at ozemail.com.au]

Brendan, in what way do you disprove a point by restating it?

>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.
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Exactly. Whereas patents are not treated the same way. To have a summary 
of my point given as refutation of the point indicates only that you're 
not paying attention.

>You are identifying the existence of rights with their enforcement.   
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There's a flat spot on my forehead from knocking it against a wall ... 
Yes, I am saying that in the particular case of patents, the system 
identifies the existence of the right with action taken to defend it.

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>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.  
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I gave the criminal law example to illustrate the difference, but you 
keep telling me I'm wrong because the two creatures (patent and stolen 
car) are the same. Spelling out the ethical difference:

- stealing the car is wrong and illegal, and is clearly understood as 
independent of the victim's knowledge.
- inventing a better (but infringing) mousetrap has no legal or ethical 
problem, since the act of invention (ie, build one device in my 
workshop) is *not* what patent law enforces.
- selling the better (but infringing) mousetrap may or may not be a 
legal issue, because the rights owner may not act for reasons of his own.
- selling the better (but infringing) mousetrap may be a legal issue if 
the rights holder acts; but only the court will decide whether an 
infringement took place in fact. If the court finds that the alleged 
infringement did not take place then all prior appearance of 
infringement was mistaken. So yes, I am definitely saying that it is 
proof in court which 'creates' the infringement.
- copying another mousetrap, selling it as my own, ignoring demands to 
stop, and losing the court case clearly put the infringer in the wrong.

>For the same reason an infringement occurs whether or not anyone takes action over it. 
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And here is where we diverge: I disagree with this statement, because 
the fact of infringement does not exist unless a court says so. If the 
court decides that the alleged infringement was not; or if it decides 
that the original patent should be voided - then no infringement occurred.

The patent really is the Bishop of Berkley's tree...if it falls when 
there's nobody to hear it, it makes no sound.

RC

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