Re: [Patents] Suing uninformed customers

[Hartmut Pilch <phm@a2e.de>]

> > I think it's a normal consequence of having a patent system.  Not just 
> > the producer but everybody in the chain from production to consumption
> > potentially infringes and must make sure the patent liabilities are 
> > cleared.  

> I thought a proper criteria of industrial application should somehow
> limit this possibility (without completely preventing it). 

An invention must be "susceptible of industrial application", and people
in the patent world are attacking the European Parliament because it
provided a definition for "industrial" (automated production of material
goods) that could make this provision actually means something.

Still, even with the EP definition, the "industriality" requirement only
affects the inventions themselves.  If Philipps buys special magnets which
fall under GE's US patents from a company in Austria, where these patents
do not exist, and then sells them in the US, why shouldn't Philipps be 
liable?

Patent enforcement can only work when the whole chain infringes and you
move upward from the point of use.  Each user must know what product he is
using and who can be held responsible for any infringements.  That is
similar to the requirement that you must make sure you do not buy a
bycicle from a dealer who may have stolen it and whose address you do not 
know.  If you do that, you can't complain about confiscation of the 
bycicle.

> There's some intuition that industrial property should be a concern for
> industries only, not customers. If one patents a better mousetrap, one
> expects only people manufacturing or selling mousetraps to be affected,
> not customers trapping rats.

Yes, because the customers have bought their mousetrap from a dealer with
whom they have contractual relations that clear them of their duty.  And
the dealer again has such relations with the producer.

I don't see much of a problem with liability of customers.  Rockwell's
customers should be able to get Rockwell involved in their defense.  If
they aren't, then there must be some other problem.

Systematic problems do start when you leave the industrial realm and go
into information patents or into other goods whose replication does not
need an industrial process, such as seeds.

It might be a good idea to ask for a clear regulation of this border,
also in the currently pending 

        IPR enforcement directive
        http://plone.ffii.org/events/2004/ipred/

which is unfortunately a complete mess, apparently designed mainly to 
satisfy some kneejerk demands from information-producing businesses, but, 
for some tactical reasons, piggy-backed onto a very wide concept of 
"intellectual property" which includes patents and counterfeiting.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/