Relax liability for infringers

Problem

Patent liability is strict liability. This means that all a patent holder must do is show that a defendant practices its invention, not that the defendant had any intention to infringe, or even any knowledge that the patent existed. The law, in its current form, allows trolls to target anyone who allegedly infringes.

Solution

Congress should pass a law letting alleged infringers avoid liability when they can show that they independently arrived at the invention they practice. If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it. An innocent infringer defense would protect those inventors and, consequently, shut down a major revenue stream for the trolls.

John Allred
United States
Posted Jun 24, 2012 8:39 am
  • Academic
  • Internet user
I like this idea.

I believe that if a defendant can prove that they were not aware of patents, or had arrived at the idea BEFORE they knew of a patent, and after they had made appropriate inquiries at the patent office.

Additionally, if a patent can be proven to be too vague, it makes sense that there should be an acknowledgement of "No Willful infringement". This sort of defense should be perfect for discouraging the litigation on vague patents which trolls like to use and abuse.
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267 thumbs up.
Al L
Thailand
Posted Jun 22, 2012 11:51 pm
  • Software developer / engineer
  • Venture capitalist / investor
"Arrives independently" - How do you determine that? Sounds to me like the biggest loophole ever to avoid liability for patent infringement. Absurd.
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267 thumbs up.
Ruediger Jungbeck
RSJ Software GmbH
Germering
Germany
Posted Jun 21, 2012 8:02 am
  • Software developer / engineer
A patents protects the idea independent of the way you arrive at it. (You could infringe on a patent (but not on a copyright) without ever knowing about it)

So what you really want, is to end software patents (which is a very good idea for this and many other reasons).

Relaxing reliability might be better than the current situation, but proving how you arrived at a specific implementation (without knowing someone else did the same), might be practically impossible (especially as patents are public records anybody can see).
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266 thumbs up.
Ritu Agarwal
Ritu Agarwal
delhi
India
Posted May 19, 2015 3:06 am
  • Venture capitalist / investor
I am going to invest in Cameroon to start new business. please inform me that:
1.patent (blatant tax-municipalities) applicable for companies registered under Free trade zone & what will be tax %.
2. Applicable time period (i.e. from 1st or 2nd or 3rd year to start business or )
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172 thumbs up.

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Ben Bogart
Simon Fraser University
Vancouver
Canada
Posted Jun 20, 2012 4:28 pm
  • Academic
  • Software developer / engineer
  • Internet user
When you write poetry you’re using words you did not invent (though you could) to convey some idea. Likely you also use phrases and sentence structures you did not invent. Further, you may be be using allegory and referring to stories and ideas you also did not invent. So where is the line between repetition and contribution? IP and copyright clearly make the point that a particular arrangement of form may be unique and attributable to one person (or corporation).

Things get sticky when we go beyond specific words on a page or particular arrangements of physical materials. For example, software is covered by copyright; the specific arrangement of syntax and words in a digital file can be considered the same as the arrangement of words on a page. So why are there such things as software patents? They exist because (largely) corporations seek to control not only the implementation (the code) but the very process, the algorithm itself.

If you take an idea from someone else’s writing and restate it in completely different words, that is not infringement. In the world of code, a particular software process could be reimplemented so that it does not infringe on the original, but yet to the user of the program the process may be indistinguishable. What is the problem with this? Well, the algorithm is quite similar to an idea. It can be realized in many different forms without loosing its identity. I don’t think it makes any sense to attribute ownership to an idea because there is no obvious objective way of measuring how that idea is related to other ideas in order to determine its (degree of) originality.

The conceptual content of an algorithm, or a poem, is both a function of the uniqueness of the reader (associating each symbolic representation to experiences and practises in their life) and the commonality of the culture. The same relation applies to the creator of the poem or algorithm. So we return to the question, where is the line between the cultural norm and the unique and individual contribution?

I think that a part of the answer is a consideration of scope. If we look very tightly at a supposed contribution then it may seem very unique and interesting compared to the background. If we broaden the scope (look at ideas in other contexts and in a broader time-frame), then perhaps what was seen as unique and original suddenly blends into the background and its uniqueness is reduced, or even obliterated.

I would go so far to say that individual ownership (of any idea) is flawed because no human creation happens in isolation. The argument of ownership can only apply to a physical form that is implemented by a creative individual: “I made this, its mine”. That ownership only applies to the physical object, and not the content.

All creative endeavour is social and cultural, and as such owes most of its existence to culture itself. Even if you could make a particular individual unique contribution in isolation, it would have no value because it would exist outside of the context of culture. No one could even understand it because it would not depend on cultural norms for communication and purpose.

So how can one “own” an idea that cannot be excised from culture? It seems that our non-communal notions of owning physical things has crossed over to apply to ideas, but I don’t think the relation holds at all. You could even argue that you can’t own a physical “thing” because you did not pay for all aspects of its creation; somewhere in the process someone, or something, looses out (a worker not paid a living wage, an animal’s suffering, the environment), and you owe something by “owning” that object.

The worst thing about all this effort for uniqueness and originality funnelled into IP vaults, is that it deprives culture of those elements. If we lack a background of ideas and practises then that can only hurt future innovation, creativity, and originality. Ideas, including abstract processes, are cultural and social notions, and without a commons, they have no meaning and no value.
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496 thumbs up, including yours.
Marco Meijer
Twente University
Netherlands
Posted Jun 20, 2012 4:26 pm
  • Academic
  • Software developer / engineer
  • Internet user
This idea is lacking. While the thought behind it is decent, I don't see how you could prove whether someone really did not know of a patent, or is just pretending not to know. While it seems to make things better for a lot of people, it also seems to open new doors for actual infringers.
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514 thumbs up, including yours.
Joe Kowalski
United States
Posted Jun 19, 2012 7:44 pm
  • Software developer / engineer
  • Internet user
I would rather there be more of a "safe harbor" type provision. A patent owner could write a letter to a potential infringer and say, hey, we think you infringe on our patent #xxxx,xxxx, and here's why, and the infringer will have 30 days to reply with an oops we didn't know, and then have 90 days to work around the infringement, licence the patent on FRAND terms, or remove their product from the market without any damages or liability.
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533 thumbs up, including yours.
Albo Fossa
APF
Santa Fe
NM
United States
Posted Jun 19, 2012 2:16 pm
  • Software developer / engineer
"Independent arrival" is a vacuous notion, with possible noble intent, but difficult-to-impossible to prove. It would require mind-reading beyond current human abilities.
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573 thumbs up, including yours.

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