BitLaw

Issuance | Patent Index | Design Patents

Scope of Right to Exclude

It is important to note that a patent does not grant the patent owner any right to make their own invention. Rather, the patent gives the patent owner the right to exclude others from making, using, selling, or importing the invention. The patent holder's right to make their own invention is dependent upon the rights of others and whatever general laws might be applicable. Another party may own a patent that will prevent the patentee from utilizing her/his own invention. In addition, government laws, such as antitrust laws or FDA regulations, may restrict the ways in which a patent holder can utilize her/his invention.

Since the essence of the right granted by a patent is the right to exclude others from commercial exploitation of the invention, the patent holder is the only one who may make, use, or sell the invention. Others may do so only with the authorization of the patent holder. Such authorization is usually given through a patent license agreement. In this sense, patent laws grant monopoly rights in the invention, in the sense that a monopoly is a exclusive right provided by a government for one party to practice a business in a particular area.

The rights granted under patent law are very different than rights granted under copyright law. For example, under patent law it is irrelevant whether the infringer independently developed the same invention--all that matters is that the infringer is infringing at least one claim in the patent. In contrast, copyright law prevents the copying of the expression of ideas. Independent creation of the same expression is not a violation of copyright law, because no copying took place. Furthermore, copyright law does not protect ideas themselves, only expression. As a result, copyright law does not prevent someone from reading about a great idea in a copyrighted work, and then using that idea themselves.

Infringement

Infringement of a patent is the unauthorized making, using, selling, or importing of the patented invention within the territory of the United States, during the term of the patent. The scope of this right is governed by the claims found in the issued patent. In most cases, a patent will issue with multiple claims. Only one claim needs to be infringed in order for the entire patent to be infringed.

If a patent is infringed, the patent holder may sue for relief in the appropriate Federal court. The patent holder may ask the court for an injunction to prevent the continued infringement and may also ask the court for an award of damages. In such an infringement suit, the defendant may question the validity of the patent, which is then decided by the court. The defendant may also claim that its actions do not constitute infringement. As explained above, infringement is determined by comparing the language of the patent claims against the allegedly infringing device: if what the defendant is making does not fall within the language of any of the claims of the patent, there is no infringement.

Suits for infringement of patents follow the rules of procedure of the Federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. If the United States Government infringes a patent, the patent holder has a remedy for damages in the United States Claims Court. The Government may use any patented invention without permission of the patent holder, but the patent holder is entitled to obtain compensation for the use by or for the Government.