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.
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.)
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.
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.
>> 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.)
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?
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.
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.
Also, I'm not a lawyer, so correct me if I'm wrong, but isn't it also patent infringement if the following happens:
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.
The key issue of disclosure - your 3rd step - happens at A-publication which is usually quite some time prior to the patent being granted but still can be a couple of years after the filing date. (this is the source of many of the 'I can't believe they granted this patent' articles because the A-document is printed from the submission prior to substantive examination).
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.
IANAL, but I believe that's only true if B was using it before A filed. The order described was "A files, B re-invents, A's patent is issued". It may have some weight in arguing that the invention was obvious, but my understanding is that this is harder than invalidating a patent based on prior art.
I intend to implement things I invented all the time (usually fairly trivial things, undeserving of patents). Many of them have probably been invented before, but because they are trivial, I am not infringing anything. If one of them happened to be slipped by the patent office, now I am infringing. Would you say that I intended to violate the patent? Is it incumbent on me to read every single patent granted and make sure I'm not doing anything that might use any of them? An argument could be made that I am negligent for not doing so - but negligence requires that the action expected be reasonable. 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".
> Is it incumbent on me to read every single patent granted and make sure I'm not doing anything that might use any of them?
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....
Alone, ignorance of the law is not a good excuse. However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.
> However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.
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.
Here's the section from UK law, you could look up a similar section in your jurisdiction:
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 ...
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?
> Could you explain what you understand by "intent"?
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.)
The argument is that the hapless patent infringer doesn't intend to use a technique without the required permissions. I tie my shoes without permission regularly, but I never intend to tie them without a required permission.
This is the problem I've always had with patents, but I've never been able to articulate it before.