Heavyweights like Nokia and Microsoft on one hand, and the grass-roots Foundation for a Free Information Infrastructure on the other, are making common cause against wide-ranging legislation proposed by the European Commission that would criminalize all intellectual property infringements, including patents. The law would provide blanket protection to all forms of intellectual property through the 25 countries of the union.
"It's never black and white," he said of patents. "Sometimes third-party patents are so weak that I advise managers to go ahead and innovate because after making a risk analysis we feel we can safely challenge the existing patent."
He added, "But with this law, even if I'm certain the existing patent is no good, the manager involved would be criminally liable."
"This law doesn't make much sense for anyone in the patent world," Mr. Pilch said.
The commission, however, takes the opposite view. "Regarding the substance of the proposal, our view is the reverse of the people you have been speaking to," said Friso Roscam Abbing, a commission spokesman on justice-related issues. "We believe that we need to protect innovators, therefore we want to send a strong signal to those people infringing intellectual property that they face criminal sanctions."
Innovators generally don't work in isolation, they build upon previous work. In fact, part of the patent bargain is that in exchange for getting temporary monopoly rights to the use of your innovation you have to make public just what that innovation is. Patent issues are almost never 100% clear and any inventor is potentially going to be inadvertently violating patents. If they do it make sense that they should have to compensate the original patent holder, but criminalizing such activity would put half the tech community, including the makers of Blackberry, in jail.