What is a Patent?

The short answer is that a patent is a right to exclude others from making, using, or selling a particular invention for a limited time. I’ll say that again, and shorten it: A patent is a right to exclude. Note the negative, not positive, language of that statement. It’s important to understand that a patent does not confer on its owner the right to do anything; it only grants him the right to stop other people from doing something.

If you’re new to patent law, that concept may seem a little counterintuitive. After all, we always hear about the rich inventor who made a fortune by patenting some nifty gizmo, and we assume that since he holds the patent, he has the exclusive right to make and sell that invention. That’s close, but not quite right. What really happened was that the patent gave the inventor the right to stop others from making and selling his invention. Just because the inventor has a patent does not necessarily mean that he has the right to practice his own invention.

Here’s an example to illustrate: Inventor Anheuser invents an aluminum beer can and obtains U.S. Patent protection. Anheuser’s novel beer can is the first of its kind, allowing beer to be served in light, inexpensive, easy-to-shotgun aluminum receptacles. The can is a huge hit, and Americans line up in droves to buy beer packaged in Anheuser’s can. The new can is so successful, in fact, that it captures 90% of the lucrative swill-beer can market. There is one problem, though – the method of opening the can, a pull tab, isn’t environmentally friendly. When opened, the pull tab becomes separated from the can and is often littered to the ground, where it becomes the snack of choice for unsophisticated non-foodie geese. Inventor Busch recognizes the problem, promptly invents the stay-tab opening mechanism, and obtains U.S. Patent protection. Upon seeing the new invention at a trade show, every swill beer producer in the country indicates their interest in aluminum cans made with the new stay-tab top. Geese are ecstatic. (Well, the smart ones, anyway.) Busch’s invention is so revolutionary, in fact, that the President receives Inventor Busch at the White House, and Congress declares July 15th to be stay-tab top day throughout the United States.

  • In this situation, Busch is not entitled to produce aluminum beer cans that incorporate his stay-tab opening mechanism without first obtaining a license from Anheuser. In other words, Anheuser’s patent on the aluminum can gives him the right to exclude Busch (and everyone else) from producing aluminum beer cans.
  • Similarly, Busch’s patent prevents Anheuser from producing aluminum cans that incorporate the new stay-tab opening mechanism.
  • Its numerous awards and accolades notwithstanding, the fact is that Busch’s can-opening invention is useless without Anheuser’s aluminum can. Busch may have invented the product of the century, perhaps even of all time, but Inventor Anheuser is well within his rights to exclude Busch from practicing his invention by denying him a license to use his aluminum can invention. That is, until Anheuser’s patent expires. In this situation, Inventor Anheuser is said to be using his patent as a blocking patent.
  • Of course, given the great piles of money to be made, it would be in both inventors’ best interests to work together. This is what usually happens in the patent system – inventors work together to forge licensing agreements that benefit both parties.

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