[distant-uncle]

I've been mulling over the most common argument predictably wheeled out by the patent aggressors and their supporters:

"Theft! We don't want them to steal our stuff!!"

Never mind that even if one allows that the whole concept of patents is a legitimate, and an ethical legal framework, patent infringement is never theft.

Theft would involve actual trespass of someone's physical property, that involves removing and/or otherwise exploiting said property without the owner's permission -- in effect depriving them of it.

So for an obvious example, if Corp A. breaks into Corp B's engineering offices, and literally steals their code and/or design documents.

That would be theft.

Of course, computer break in is not technically a physical trespass, but the distinction still stands: an actual trespass must occur.

We already have time-tested criminal laws for this, and justly so. Patents are completely redundant for this case.

But if you think about, there is actual, honest to goodness theft that goes on in patent cases... and the thief, it's the aggressor! Albeit for a "limited time" (that's of course subject to interpretation, in 20 years many things happen, to someone who dies, that limitation is permanent), someone is given the government-sanctioned go-ahead to literally deprive another of their own discoveries and hard work.

Independently discovered, independently arrived at and hammered out.

No matter.

[saraid216]

I'm not a fan of the concept of intellectual property, but...

...you apparently don't understand the concept of an analogy. The whole reason that IP is called intellectual property is precisely to draw an analogy. Thus, the violation of that property is called theft.

And besides, you don't understand theft of physical property either. It does not require physical trespass: taking someone's wallet when they put it down on a table for a moment is theft. Theft is a transfer of possession without an accompanying transfer of ownership.

In intellectual property, theft is a duplication of possession without an accompanying duplication of ownership. The result is nevertheless that someone comes into possession of property without the right to own it. Distilled, this is an entirely fair conceptualization of theft.

[distant-uncle]

Infringement is not theft, it is an entirely separate legal concept.

Dowling v. United States

http://www.techdirt.com/articles/20100913/22513210998.shtml

The above deals specifically with copyright, but the concept is the same.

Secondly, in the post you replied to, I'm not talking about "intellectual property", I'm talking specifically about patents. I think that the copyright laws for instance, are far more balanced, and fair... lengthy time scales notwithstanding.

> It does not require physical trespass: taking someone's wallet

> when they put it down on a table for a moment is theft.

Indeed, it is also trespass on someone's physical property. This is obvious, and brings into question your own understanding.

Back to patents.

Suppose I discover, and implement a product, doing so entirely independently. I'm then summarily denied the right to practice it via a patent shakedown. Am I still in possession of it? Is one still in possession of one's freedom, if all one has remaining is a tiny cell to walk around in?

Let's now break it down in your terms. If Alice infringes on Bob's patent, both have possession, but only Bob, under the law has ownership. However, in the case of patents, Alice can come into possession of "Bob's property" without even knowing of Bob's existence, much less of the existence of "Bob's property".

This is not theft.

Now let's turn it around. Assuming Alice came into possession of "Bob's property" without being aware of Bob, or "his property", i.e., Alice discovered and implemented it entirely independently.

It is now Bob, who can deprive Alice of her own property, in effect taking the ownership of it, as well as having it in his possession.

If this is not theft, then I do not know what is.

One more time... in the event of infringement, Bob can still practice his art and make use of his property. Alice then merely engages in competition with Bob.

In the event of patent enforcement action via the iron hand of the government, Alice can neither exercise, nor even posses "Bob's property".

[saraid216]

> Indeed, it is also trespass on someone's physical property. This is obvious, and brings into question your own understanding.

It really isn't. Trespass is about land, though in our modern day world of two-story buildings, it is more exactingly about space. See: http://thelawdictionary.org/trespass/

In order to work trespass into your convoluted example, you had to call upon several other ancillary crimes, like breaking and entering and the oddity about exploiting someone else's property, which I don't think is even codified.

Personally? If you want to figure out how to fix patents, I'd suggest dropping software as an example and going over to food recipes.

> Back to patents.

I don't particularly care about your clever table-turning unless you actually get the argument to hold up in a court of law. Patents are problematic: this is obvious to virtually everyone working in the tech industry and many more besides. Philosophical tricks are useless until legally recognized. It's nice to be able to play semantic word games, but it's an entirely different league to be using legal language.

Also, you seem to be under the misapprehension that I was defending patents. I am not. I'm objecting to your criticism of the word "theft".

[distant-uncle]

> Trespass is about land

Well, to borrow a phrase, it really isn't. Or more precisely, land is one subject area. Take a few moments to research if you're curious, but do go beyond a law dictionary.

> that I was defending patents. I am not.

It seems we agree... then?

> I'm objecting to your criticism

Ok, fair objection. I also noticed your objection was less than friendly, so perhaps your predisposition to the abuse of certain words is so strong, that you will recognize that indeed, using the word theft when one intends to convey the concept of infringement, is invalid.

This is precise legal language and meaning.

As to changes to the patent laws, I can only hope. I do also hope, that as you say, it is obvious. The more blindingly obvious this becomes to people, the better. So hopefully, we can close on the positive note of both hoping for the same thing?