Common misconceptions about patent rights:
In my decades of counseling life sciences companies, I have found that many inventors and professionals are not aware of these counterintuitive fundamental principles of patent law:
Patents grant a negative right: The right to exclude (or block) others from practicing an invention.[FN1] (See FIG.)
Patents do NOT grant inventors the right to practice their invention. [FN2]
Why is it important for you to understand these counterintuitive fundamental tenets of patent law?
These principles are the reason you need to invest not only in building your own patent portfolio (your ability to block competitors from developing your inventive products/processes), but you also need to get to a position of acceptable risk, that you are not infringing the valid patents of others, especially your competitors (that your competitors won't be able to block you from commercializing your products/processes).
How does this play out in the value and investment rounds of your company?
It is likely that during one of your funding rounds, at least one of your sophisticated investors will have their patent attorneys perform diligence not only on the strength of your current or potential future patent portfolio (the strength of your ability to block/exclude competitors from developing identical/similar products and processes to yours), but also on the strength of your position that you do not infringe the valid patents of your competitors (See our recent blog post on this topic). Thus, your investors want to get confident that you will have the ability to block/exclude your competitors from developing identical or very similar products and processes to yours, and that your competitors will not be able to block you from developing the products and processes that you are developing.
Take home message:
As illustrated in the figure, patents grant inventors (and therefore companies that own their patents), the (negative) right to block others from practicing their patented inventions. They do NOT grant inventors the (positive) right to practice their patented invention.
Footnotes:
1) The basic negative rights to exclude are codified at 35 USC 154:
"Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof."
2) There are positive rights with respect to co-inventors that are codified at 35 USC 262:
"In the absence of any agreement to the contrary, each of the joint owners of a patent may make, use, offer to sell, or sell the patented invention within the United States, or import the patented invention into the United States, without the consent of and without accounting to the other owners."
---
10/16/24 EJV
This is not legal advice. Please consult a licensed patent professional regarding your patent matters.
Comments