Re: [Patents] Suing uninformed customers

[Russell McOrmond <russell@flora.ca>]

On Tue, 27 Jan 2004, Hartmut Pilch wrote:

> 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.

  The above is written from the point of view that patent enforcement is
the overriding and only public policy we should be concerned with.  
Simply put, we cannot think that way or we end up with nonsense public
policy.

  Basic trade and economics can only work when regulation can only affect
those who have enough information to make a choice in order to not
infringe upon the regulation.  End users cannot ever be considered
responsible for knowing what methods are embedded within or used to
manufacture a product/service.  As it is most end users don't read product
manuals before use, and now you are suggesting they should be reading
possibly thousands of patents before acquisition of
products/services/knowledge?

> 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.

  How many consumer products have you purchased that have such a 
contractual relationship?  Most consumers don't even know who the 
manufacturer of a product is when they purchase it from retail outlets, 
leave alone have signed contracts with the manufacturer.

  If such contractual requirements were added I suspect most of the worlds
commerce would simply shut down.  Now we have moved from patents being a
chill on innovation to patents being a chill on commerce.

> I don't see much of a problem with liability of customers.

  I don't see much of a problem with non-liability of
customers/consumers/citizens/users, and having patent policy only apply to
large manufacturing firms who are the only real beneficiaries of this area
of public policy.

Lets flip this around:

  The worst thing that can happen in the extreme of having no patent
protection (not even what we are talking about here) is that fewer
companies would take large risks toward innovation.  This is a worst-case
scenario that is questionably worse than the status-quo we currently have
in information processes where patents chill innovation, and a case that
is considerably better than the scenario you just described.

> 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.

  I don't believe they start here, although I think that thinking of
non-humans (plants) infringing on patents is just several orders of
magnitude worse than the also problematic thinking of non-industrial
players (end-users, etc) infringing on patents.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/