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Wealth of Ideas, April 2005
Prospective inventors often have ideas about patents
that aren’t quite true – such as the belief
that a patent, once obtained, will be easy to license
to a large company, thereby making the inventor fabulously
rich. Unfortunately, it isn’t necessarily so. It
is difficult for an individual inventor to license his
patent, and few inventors succeed.
Read on for a few of the other major misconceptions
concerning patents.
Misconception #1: A patent gives you the right
to practice your invention. First, a patent does not
provide positive or affirmative rights at all. A patent
is strictly a negative or exclusionary right –
the right to exclude others from using, making, selling
or offering for sale the patented invention.
Furthermore, no patent is an island. That’s because
all patents have prior art, meaning patents, publications
or products that precede the patent in question. So
just because you have a patent doesn’t mean that
you have the right to practice the patented invention
without having to license someone else’s patent.
What a patent does give you the right to do is to sue
someone who is practicing your patented invention without
your permission.
Which brings us to the next misconception:
Misconception #2: If an alleged infringer is
doing something similar enough to your patented invention,
it must be infringement. This is the misconception of
those that think that a patent tangentially related
to computer software simply must be infringed by Microsoft,
and infringement can be found if you just look hard
enough and squint your eyes in a certain way as you
read the patent claims. But the fact is that the scope
of a patent is limited to its claims, and each limitation
of the claim must be met by the allegedly-infringing
product or process in order for infringement to exist
(this is known as the “all elements” rule
of patent infringement).
For more on what constitutes patent infringement, see
our September 2004 feature article, “Is
My Patent Infringed?”
Misconception #3: Rights accrue from the patent’s
filing date. The right to collect damages for patent
infringement really only begins when the patent actually
issues – not when you file the application. (After
the patent issues, certain limited rights commencing
on the date of publication of the patent application
may retroactively accrue.) The filing date is important
in other ways – for instance, if you have publicized
your invention and need to file within the one-year
“grace period” (see “Patent
Basics: Statutory Bars”, December 2004).
There are many more patent misconceptions besides these,
and even if you are a patent-holder, you may not understand
patent law as well as you think you do. That’s
why we always recommend that you consult a patent attorney
if you believe that your patent is infringed (or if
someone accuses you of infringement).
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