[LINK] Is it unethical to infringe a patent?

[Brendan Scott]

rchirgwin at ozemail.com.au wrote:
> 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.
>>  
>>
> Exactly. Whereas patents are not treated the same way. To have a summary

Patents are treated in the same way.  On what basis do you think they're not?  Perhaps you might point me at some reference? 

This all reduces to the point below. 

[]

> - stealing the car is wrong and illegal, and is clearly understood as
> independent of the victim's knowledge.

as is the case for infringements of patents. 

> - 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.

*Making* the mousetrap will be an infringement if it strays across someone's patent. 

> - 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.

No.  Whether or not the patent owner acts, or is even aware of it, the sale of the mousetrap is still an 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.  
>>
> 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.

This is now a word game.  You can play it just as easily with any other breach of the law "Oh, no, X hasn't evaded tax because a court hasn't said they have/the tax office hasn't found out/ haven't taken action".  There's no basis to play it with the infringement of patents. 
 
> The patent really is the Bishop of Berkley's tree...if it falls when
> there's nobody to hear it, it makes no sound.