Anonymous Coward: “It looks as if Apple had about 5 1/2 years notice of Picsel’s application and its contents. It had slightly less than a year to look at the Picsel patent. … What will be the outcome of this matter is unknown, but one thing is known…Apple should learn to read its copy of the Official Gazette published weekly by the USPTO. Had it done so back in 10/01 it could have saved itself a lot of grief.”

This repeats the very mistake that Mullin is talking about: here AC implies Apple *had notice of* the previous application, that is, that they were actually aware of it, before the iPhone was developed, and therefore that they copied it. But just because a patent application is published and the state’s artificial, positive law rules decree that people “are on constructive notice” does not mean that they have actual notice, or knowledge, of it.

Riley, in an incredibly rude and incivil post, wildly asserts that “Most patent lawsuits are about blatant theft of an inventor’s work.” Where is his proof of this? The study Mullin reports on carefully examined evidence in this regard and didn’t find this. Moreover, Riley uses the loaded term “theft.” This is problematic for several reasons. First, even the artificial state patent law system does not label patent infringement as theft–it’s just infringement. And no wonder–if they refer to it as “theft,” then this implies that if you do *not* copy then it’s *not* infringement–that is, that independent inventorship is a defense. And I’m sure that patent socialists like Riley do not want this kind of defense, do they, even though they they harp on the “copying” meme so much for rhetorical and propaganda purposes, further confusing the public, just as Mullin notes.

Second, theft implies taking something from someone–in normal theft, the very problem with the theft is that the thief deprives the owner of his property. But this is the problem with the idea of intellectual property as such–if I use my own property according to a certain technique, design, or recipe–some pattern of information–this does not deprive the originator of that pattern from using it himself. In other words, even if I do copy your idea, I have not taken it from you–you still have it.

so patent socialists are left with the claim that what the infringer is “taking” is not the idea, but the right to profit off of it–but of course, this notion is fraught with difficulty. For one, it is circular because it is only if the state grants an artificial monopoly that one would have the right to collect monopolistic royalties, so one cannot justify this practice by relying on it–that’s circular. For another, it implies that there is a right to the value of property–but there is not; only the right to the physical integrity of one’s property, not what others think about it or are willing to pay for it. (I explain this fallacy in this post: Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors http://blog.mises.org/archives/007614.asp .)

Masnick: “Claiming it “incorporated Picsel-patented technology” is the sort of thing that leads those who are not well-versed in patent law to think that Apple actually TOOK Picsel’s tech and put it into their own product… rather than coming up with the same concept separately.”

Masnick is dead-on here. There is a widespread confusion about copying, and this needs to be made more clear.