5 ms·

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 bef

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.

mnutt 14y ago
Patent infringement is a civil matter, and a variety of those don't require intent. Criminal cases are much more likely to require intent, though there are plenty that don't.
- Oxryly 14y ago
  IANAL, so isn't one of the counterparts to intent in law negligence?
RyanMcGreal 14y ago
It's weirder than that. If the court determines that you knew about a patent and decided to violate it anyway, the penalty is considerably harsher. That means there is actually an incentive to remain as ignorant as possible about existing patents when developing new software.
- duskwuff 14y ago
  Which ends up meaning that, rather than being a repository of useful inventions and techniques, the patent database ends up being a minefield -- as a software developer, for instance, you're best off avoiding looking at patents at all. (Since the ones that are old enough to have expired are now generally obvious in retrospect.)
- raphman 14y ago
  Ack. IIRC Microsoft Research has the policy that researchers may never look at patents at all.
  - josephcooney 14y ago
    Not just MS research. IIRR if you had something you thought was patentable you handed it off to them, and they did the leg work so you didn't become 'tainted' by looking at patents. Very weird.
anamax 14y ago
>> Most other crimes require intent, patent infringement does not. 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.)
- eli 14y ago
  Of course there are folks using patented technology without permission of the owner who nevertheless did not intend to infringe a patent -- that's exactly what's happening here with Mindcraft! 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?
  - pbhjpbhj 14y ago
    That's like arguing that you thought it was legal to kill someone using radioactive isotopes and therefore you had no illegal intent. Patent infringement is defined by the corpus of protected inventions and being unaware of the locus of infringing actions is not a defence against infringement. 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.
    - anthonyb 14y ago
      It's completely different. For starters, there's the "reasonable person" test. No reasonable person is going to think that murder is legal. 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.
monochromatic 14y ago
Patent infringement isn't criminal. There are plenty of civil causes of action that don't require intent.
monochromatic 14y ago
Patent infringement isn't criminal. There are plenty of civil causes of action that don't require intent.

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.

mnutt 14y ago

Patent infringement is a civil matter, and a variety of those don't require intent. Criminal cases are much more likely to require intent, though there are plenty that don't.

Oxryly 14y ago
IANAL, so isn't one of the counterparts to intent in law negligence?

RyanMcGreal 14y ago

It's weirder than that. If the court determines that you knew about a patent and decided to violate it anyway, the penalty is considerably harsher. That means there is actually an incentive to remain as ignorant as possible about existing patents when developing new software.

duskwuff 14y ago
Which ends up meaning that, rather than being a repository of useful inventions and techniques, the patent database ends up being a minefield -- as a software developer, for instance, you're best off avoiding looking at patents at all. (Since the ones that are old enough to have expired are now generally obvious in retrospect.)
raphman 14y ago
Ack. IIRC Microsoft Research has the policy that researchers may never look at patents at all.
- josephcooney 14y ago
  Not just MS research. IIRR if you had something you thought was patentable you handed it off to them, and they did the leg work so you didn't become 'tainted' by looking at patents. Very weird.

anamax 14y ago

>> Most other crimes require intent, patent infringement does not. 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.)

eli 14y ago
Of course there are folks using patented technology without permission of the owner who nevertheless did not intend to infringe a patent -- that's exactly what's happening here with Mindcraft! 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?
- pbhjpbhj 14y ago
  That's like arguing that you thought it was legal to kill someone using radioactive isotopes and therefore you had no illegal intent. Patent infringement is defined by the corpus of protected inventions and being unaware of the locus of infringing actions is not a defence against infringement. 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.
  - anthonyb 14y ago
    It's completely different. For starters, there's the "reasonable person" test. No reasonable person is going to think that murder is legal. 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.

monochromatic 14y ago

Patent infringement isn't criminal. There are plenty of civil causes of action that don't require intent.

monochromatic 14y ago

Patent infringement isn't criminal. There are plenty of civil causes of action that don't require intent.