Most other crimes require intent, patent infringement does not.
This is the problem I've always had with patents, but I've never been able to articulate it before.
This is the problem I've always had with patents, but I've never been able to articulate it before.
Huh? Patent infringment consists of using some technique without the permission of the owner.
There's intent all over that.
Are you suggesting that folks are using techniques without the intent to use said techniques? Or that they aren't intending to use them without the permission of the owner? (Yes, you can argue that they didn't know that they needed permission but that doesn't change the fact that they intended to use them without permission.)
For the sake of argument, imagine I can prove that I came up with an idea for something on my own. I'm completely unaware that it has previously been discovered and patented. I did not even think it was an idea that could be patented. Did I intend to infringe that patent?
If you make sufficient disclosure part of the patent system then this is the only way to do things really. If you don't require it then patents are worthless for the [general populous of the] state.
Intentionally infringing a patent is punished much more harshly, and it's impossible to keep up with the millions of patents that are published, so being intentionally unaware is actually a decent legal defence.
And yes, this does mean that patents are generally pretty useless for software.
A patent is filed for technique X by company A,
Company B use technique X having created it independently,
The patent is issued to Company A,
Company B is now infringing upon Company A's patent.
Company B could not possibly have committed patent infringement intentionally, because the patent they infringed didn't even exist when they went about implementing their product.
I don't know about the US situation but in the UK Section 64 of the Patents Act (http://www.ipo.gov.uk/pro-types/pro-patent/p-law/p-manual/p-... and http://www.legislation.gov.uk/ukpga/1977/37/section/64) allows a person to continue activity which was started prior to the grant of a patent in secret or where sufficient preparations for that [infringing] activity were made prior to the application/grant in good faith. If the activity wasn't in secret then it forms part of the prior art and invalidates, or forces amendment of, the patent in question.
If there isn't an equivalent US clause I'd be surprised: 35 U.S.C. 273 "Defense to infringement based on earlier inventor." looks like a candidate.
edited to fix numbers
Basically, yes.
> Over 40k software patents are granted each year. If I spend 20 minutes on each (which is optimistic), it will take me a year and a half to read a year's worth if I do nothing but read 24x7. Obviously, expecting me to keep up on that and still do any development is absurdly unrealistic, and so it is not appropriate to call my failure to do so "negligent".
Do you think that "ignorance of the law" is a reasonable excuse? I ask because there are far more laws and regulations than there are current patents....
While it may be absurd for our society to punish you in that circumstance, our society will punish you in that circumstance. In other words, "it's absurd" isn't a legal defense.
Ignorance of patents, like ignorance of law, is no defense, no matter how impractical knowledge is.
It is also relevant to what shape the laws should have.
There are different punishments for patent infringement with and without intent, so by definition you can have patent infringement without intent.
Nope. There's just a more serious penalty when you continue after being informed.
when awarding damages ... take into account the following – (a) whether at the date of infringement the defendant or defender knew, or had reasonable grounds to know, that he was infringing the patent ...
(That's paragraph 62 (3)(a) from http://www.ipo.gov.uk/patentsact1977.pdf )
Seems quite clear cut.
Could you explain what you understand by "intent"? Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?
Did you intend to use a technique? Did you intend to use it without permission. Note that the latter doesn't require knowledge that permission was required.
As to treble damages after being informed, that's an extra hammer, sort of like "you had a chance to clean up your act".
> Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?
Yes.
It's sort of like violating the law. You can be guilty of doing something with intent to do that thing even if you don't know which law is involved.
That isn't the question I'm considering, which is where the apparent disagreement comes from. Someone can intend to use a technique, while not intending to infringe a patent. It is infringing the patent which brings legal problems.
You can be guilty of doing something with intent to do that thing even if you don't know which law is involved.
In that case, yes, you'd have intent to do that thing, but no, you would not have intent to break the law.
The extra penalty is being applied to intent to break the law, to do that you need to know about the law. From the perspective of the person breaking the law, they think they are innocent. They don't intend to be guilty. (Even if they actually are guilty.)
I understand where you're trying to go, but, as with the criminal law situation, you're trying to reward ignorance.