03 September 2009

Patently Absurd

Trevor Bayliss, with the support of Vince Cable, has called for patent infringement to be made a criminal offence, in part by using the argument that it would bring patents in line with copyright, for which infringement can be a criminal offence.

I've posted on previous occasions about my lack of enthusiasm for the treatment of ideas as property, but putting that aside, this argument shows the problems that can arise when people start to accept the term "intellectual property" and treat copyright and patent laws as if they are interchangeable, when they are fundamentally different. Take Vince Cable's comment:

There isn't the protection that exists in other areas of intellectual property. If people steal ideas from creative artists, you can go to prison for that. But patent theft is just part of life.

Putting to one side his use of weasel words such as "steal" and "theft," the major flaw in his position is that he assumes copyright and patent work the same way, which is not the case. The crucial difference is highlighted by the word "copyright." It prevents the direct copying of a piece of work. If somebody independently creates the same, or similar, piece of work, no infringement occurs. Patents are very different. If one person patents an idea and a second person independently comes up with the same idea, the second person would be infringing the patent if they used that idea, irrespective of the fact that they are completely unaware that somebody else has had the same idea.

So, as much as I might disagree with the criminalisation of copyright infringement, at least you can tell fairly easily whether or not a particular act is criminal. With patents, that would not be the case. Without being aware of every single patent which is currently in force, there would be no way of knowing for sure whether or not using a given idea would make you a criminal, a situation which is at odds with the basic principles of the rule of law.

Of course, people could argue in favour of criminalising knowingly infringing a patent, with accidental infringement continuing to be a civil matter. This would, however, bring its own set of problems:

Firstly, determining whether or not a patent has knowingly been infringed would be difficult and in many cases, impossible. Unlike copyright, where it is highly unlikely that two people would independently produce the same song, book or film, patents can apply to inventions where it is perfectly possible for two people to independently have the same idea.

Secondly, if only knowing infringement is a crime, it encourages wilful ignorance. People may deliberately avoid checking for pre-existing patents to reduce the risk of being criminalised.

All in all, I think the suggestion is one of the worst I've seen for some time.

1 comment:

AntiCitizenOne said...

I personally think people should put a value on the patent and pay a tax based on that value. The damage of infringement would be based on a fraction this value. The patent could also be bought out at this value. This would be done in exchange for the non-expiry of patents.

Doing this would make patent owners lease patent rights more than using it as a blocking mechanism.