Non-profit Patent Utilization [LWN.net]

Non-profit Patent Utilization

Posted Feb 26, 2009 4:09 UTC (Thu) by wmfa (subscriber, #37197)
Parent article: The trouble with OpenBTS

Being a mildly-new HAM radio geek, it seems to be quite common practice to see amateur radio techies borrowing techniques and features from known published patents all the time. As long as you're doing it for yourself, not making any money on it, and so forth, you can violate the patents all you want. In fact, it is the enabling publication of patented methods that is supposed to be a part of the public good that the patent system claims to provide (insert jaded bias here).

IANAL, but isn't there some issue that before you can be sued for violating a patent it has to be proven that you made a profit off the technique? Or is proof of "harm" sufficient? Anyway, I just wonder if there's some kind of free-usage spirit that makes the entire patent question go away.

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Non-profit Patent Utilization

Posted Feb 27, 2009 1:24 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

As long as you're doing it for yourself, not making any money on it, and so forth, you can violate the patents all you want.

If you mean because the patent holder won't bother to sue you, OK.

In fact, it is the enabling publication of patented methods that is supposed to be a part of the public good that the patent system claims to provide

The public good claimed isn't that people can then use the invention for free. It's that they can then license the technology from the patent holder, and years later use it for free.

isn't there some issue that before you can be sued for violating a patent it has to be proven that you made a profit off the technique? Or is proof of "harm" sufficient?

You mean before you owe someone money for patent infringement; you can always be sued. Proof of harm is sufficient. Besides, profit is easy to show if you were using the invention personally, because you wouldn't use it if you weren't getting more out of it than it cost you.

I just wonder if there's some kind of free-usage spirit that makes the entire patent question go away.

I'm not an IP lawyer, but while I've heard a lot about the doctrine of fair use in copyright, I've never heard of anything like it in patents.

My favorite example of how absolute patent rights are is where seeds of a patented strain of rice blew onto a rice farmer's land. He thus unintentionally and unavoidably started growing this rice. The only benefit of this rice is that you can spray it with Roundup herbicide and it won't die, and since this farmer doesn't use Roundup, he gets no benefit from it. The courts said the farmer owes the patent holder (Monsanto) the same money that farmers who voluntarily license the patent pay.

Non-profit Patent Utilization

Posted Feb 27, 2009 4:52 UTC (Fri) by wmfa (subscriber, #37197) [Link]

OK, so you're discouraging one of the popularized myths of amateur radio. You should see how the antenna fabrication community in particular behaves this way. Of course I also have serious doubts about the strength of the patents in question, so maybe the owners know better than to try. I've always wondered, but since the HAMs are so dogmatic about compliance with other federal regs (namely, their spectrum allocations), I just figured there was a basis for this behavior.

I knew about the rice/corn story - the Monsanto case made a lot of press. But one difference between that and a nonprofit is that the farmer was actually making his living that way - at the end, he'd be selling his (according-to-the-law-stolen) product. I wonder, though, if some of the stuff blew into my backyard and I harvested a bushel and put it on my dinner plate, if it would still be relevant to the same case law. I am *so* not a lawyer that I'm probably barking mad for just thinking out loud about all this.

You're point about being sued, though, is entirely right. I was once told that the only thing required to enter into a lawsuit is $40. And that's true enough. Same guy also told me that you're nobody until somebody sues you. I didn't like that part.

Non-profit Patent Utilization

Posted Feb 27, 2009 4:56 UTC (Fri) by wmfa (subscriber, #37197) [Link]

Damn spellchecker. I hate your=you're and now its my fault. Sorry all.

Non-profit Patent Utilization

Posted Feb 28, 2009 5:36 UTC (Sat) by dirtyepic (subscriber, #30178) [Link]

i still can't believe the Supreme Court of Canada sided w/ Monsanto. i'm a land surveyor and every year Monsanto hires us to mark out the legal boundaries of suspected "infringer's" land so they can legally take crop samples of canola plants that have grown over into the road allowance. i'm told the landowner then has three options - pay for a licence, burn the crop, or hand it all over to Monsanto. (ie. pay for a licence)

it very well could be that the individuals are breaking the law and knowingly using patented strains, but Monsanto's track record still makes me unenthusiastic about working for them. they're basically the patent troll of the agricultural industry.

anyways, what were we talking about again? ;)

Non-profit Patent Utilization

Posted Feb 28, 2009 19:49 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I still can't believe the Supreme Court of Canada sided w/ Monsanto.

You mean you can't believe it misapplied the law so badly or that the law is so stupid? I don't claim to know this law, but I have faith that the Supreme Court at least came close to a legally correct decision, even though I feel plenty of moral outrage.

It very well could be that the individuals are breaking the law and knowingly using patented strains, ...

That's the thing: it's not a matter of breaking the law, just of civil liability. As a civil lawyer, I'm frequently vexed by people who confuse being liable with being a criminal. The court isn't saying the farmer is a despicable thief -- just that in the grand scheme of the Canadian system of wealth distribution, money (or canola plants) now in the farmer's hands belongs in Monsanto's.

And it could be one of those cases where the law sacrifices justice in some cases in order to increase justice overall. Patent law in particular, being entirely artificial, is subject to quirks like this.