> First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong.

I don't think I follow what you're trying to say. My point is that whether something can be accidentally infringed or not is a weird criterion to use to separate ethical and unethical restraints on free expression. We create civil liability for lots of things that happen on accident. I think the ethical discussion, if there is one, centers on whether these restraints on free expression or valid in the first place.

> Second, I am not referring to trademarks as presently defined.

You said that trademarks/copyright could be distinguished from patent based on accidental infringement. You could define trademarks in a way where accidental infringement didn't create liability, but you could define patents that way too. Neither are defined that way presently.

> Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.

I'm not sure what 3rd grade reading level principles of ethical justice you're talking about. We require defendants to prove certain affirmative defenses all the time, generally in cases where something is unlikely to have occurred without wrongdoing. E.g. if you kill somebody in self defense, you're obligated to at least present evidence that it was in self-defense. And of course we're talking about civil litigation here, not criminal litigation. "Innocence" is the wrong terminology.

> Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.

I'm not the one who said that people "often" accidentally infringe patents, you were.

What on earth are you talking about? "Someone of my ilk?" Every single thing I said is 100% accurate. You just clearly didn't read your own post.

Well if you're not going to pick then I will.

The dichotomy between civil and criminal is irrelevant. You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical. An ethical person leaves others alone unless these others violate your basic rights. And if they do, then the burden is on you to prove they did, not on them to prove they didn't.

So the burden of proof principle applies here, as it should everywhere else in the law. Of primary concern here is the burden of proof that advocates of patents have on proving that the alleged patent violator deserves to be interfered with, blocked, fined, etc. They have not met this burden. Ergo they do not have an ethical right to enforce patents.

> The dichotomy between civil and criminal is irrelevant.

It is very relevant. What is "ethical" in the context of civil and criminal cases is very different. For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence.

> You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical.

"Affirmative defense" does not mean that defendants are picked at random and forced to prove they didn't do anything wrong. It means that defendants must make a credible evidentiary showing in defense after the plaintiff has already presented evidence suggesting wrongdoing.

Whether you make something an affirmative defense or an element of the case in the civil context isn't about ethics, it's about statistics. So long as granted patents aren't trivial (and that's a separate issue), it's unlikely that someone would infringe on it accidentally. Given that, there is nothing unfair about making the defendant present evidence about why that unlikely accident did in fact happen. The plaintiff still bears the burden of proving that, however.

Do you have something to offer here than merely repeating the contrary of what I said? E.g. "It is very relevant. What is "ethical" in the context of civil and criminal cases is very different."

This is not evidence for your contrary stance, it's merely repeating the status quo: "For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence."

I offer evidence for how things are treated in other parts of the law because I'm analogizing to other things that are considered ethical in our society (and have been for centuries). I can't be charged with guessing that you consider these other things unethical too.

You're playing an absolutely ridiculous game of "hide the ball" here. In your head you clearly have some specific assumptions about what is "ethical" but you're not forthcoming with those assumptions. Instead, you claim I'm being dishonest for not divining the hidden rules you've laid out in your own head.

I'm going to guess you're some sort of libertarian or possibly anarchist, playing the usual game of implicitly arguing from a non-mainstream value framework without acknowledging that to be the case, then getting upset at people for not acknowledging your unstated unconventional beliefs.

You are contradicting my point without offering an argument, which amounts to you simply repeating your view over and over in varied forms (as you just did yet again), a basic logical fallacy.