Chapter §1.02 The Right to Exclude Conveyed by a Patent

• Jurisdiction: United States

§1.02 The Right to Exclude Conveyed by a Patent

[A] Negative, Not Positive, Right

A patent, in one sense, is an official government document like the one reproduced in Chapter 11 of this treatise.⁴⁰ The document describes and claims an invention, preferably in such definite terms that competitors can read the patent and avoid infringement. In this manner a patent, and particularly its claims, serves an important public notice function.

Moreover, a patent represents a property right. The paper document is merely a tangible representation of the boundaries of a time-limited property right granted by the U.S. federal government. At the core of what the law terms a "property right" is the right to exclude others.⁴¹ Accordingly, the patent property right is a negative right-that is, a right to exclude others from making, using, selling, offering to sell, or importing the patented invention in the United States during the term of the patent.⁴²

Analogies to property rights in land are useful here. Much as the owner of real property generally has a right to prevent others from entering onto her land,⁴³ the owner of a patent can ask a court to enjoin those who make, use, sell, offer to sell, or import her invention into this country without authorization. The patent owner can also grant licenses to third parties, authorizing them to make, use, sell, offer to sell, or import the licensed products (embodying the patented invention) in the United States without fear of being sued for infringement, typically in exchange for monetary payments in the form of royalties.⁴⁴

Notably, a patent does not convey any positive or affirmative right to make, use, sell, offer to sell, or import an invention.⁴⁵ Any such positive right to exploit one's own creations arises from the common law, not federal patent law.⁴⁶

In fact, there exist any number of reasons why one might own a patent and yet not be able to practice the patented invention. For example, the economics of commercializing the invention may simply not be feasible. Scholars estimate that at least half, and probably much more than half, of all patents are never commercialized.⁴⁷ The criminal laws may forbid the manufacture of certain patented weapons banned by the government. If the patent is directed to a new medicine or method of treatment, the Food and Drug Administration (FDA) may not yet have granted approval for the sale of the item to U.S. consumers. Under certain narrow circumstances, moreover, the practice of a patent in an anticompetitive manner may result in liability under the antitrust laws.⁴⁸

[B] Blocking Patents

Yet another situation that may prohibit the practice of a patent involves the issuance of a blocking patent to another party. In this scenario, inventor A's "basic" or "dominant" patent blocks inventor B's "improvement" or "subservient" patent, even though both A and B independently qualified for patent protection on their respective inventions. In other words, if B were to practice B's patented invention, it would infringe A's patent. Moreover, A may be precluded by B's patent from practicing certain embodiments of A's broadly claimed invention.⁴⁹

Consider an example from the time of cave dwellers, before furniture existed, at least as we know it today. Assume that the cave dwellers' society has implemented a primitive patent system and that inventor A has been issued the first patent on a chair. In her patent, inventor A discloses only a single embodiment (i.e., one specific example) of a chair, which is a simple straight-backed, four-legged chair of the type you might see today in classrooms or offices...