Thu, 17 May 2007

Patent Law is Insane

UPDATE 6/1: Eric has a response that makes me happy. Phwew!

If my friend Eric Hutchins is right in his analysis, the law is an ass. First he says that willful infringement presumes that everyone has gotten actual notice of the existance of a patent merely by the USPTO's having published the patent. That is insane given the rate at which they're granting new patents. That is insane given the bombastic manner in which patent claims are written. Everyone cautions you that only an expert can properly interpret patent claims. Very well then, non-experts cannot have gotten actual notice.

As an aside, he says that trespass is strictly defined. Perhaps, but in New York State, you cannot be charged with trespass until you have gotten notice. That notice may be in several forms. First, the land upon which you pass may show evidence of use by the owners. Second, the land may be posted in a specified manner by the owners. Third, the owner may have walked up to you and told you that you are trespassing. Fourth, the owner may have written a letter to you informing you that your passage is trespass. Any of those conditions are sufficient to charge you with trespass.

Eric also cites the statute without reference to the case law. Under the English system of law, statute and case law interact with each other to form a whole. My understanding (and I am not a lawyer) is that case law provides for remedies in the case of innocent infringement. If you did not and could not have knowledge of a patent, you are an innocent infringer. Once informed of your infringement, you must stop infringing, and you may be liable for past infringement. If continued infringement would cause irreparable harm (e.g. not repairable by compensation for past infringement), then a judge may (and often will) grant an injunction against the infringing activity.

That the law grants a monopoly on purely mental steps is also insane.

Hey software patent holders! I'm infringing your patent in my head!
We have freedom of speech, but not freedom of thought?? How can that be?

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