Technology: The patent as a sword? No kidding!
A recent spate of news articles and opinion pieces suggests that the patent system is broken.
November 23, 2012 at 04:00 AM
9 minute read
The original version of this story was published on Law.com
A recent spate of news articles and opinion pieces suggests that the patent system is broken. These publications contend that it is not well-suited for evaluating software patents and/or that the patent litigation surrounding the “cell phone patent wars” is a new development that should be addressed by fundamentally changing our patent laws.
For example, an article by Charles Duhigg and Steve Lohr, which appeared on Oct. 7 in The New York Times, criticizes patent owners for starting to use their patents as swords. These articles mistakenly contend that patents should be used defensively as shields, evidencing a fundamental misunderstanding of how patents are supposed to promote innovation and reward innovators, not only in our country, but in virtually every industrialized nation in the world.
A patent grants its owner one thing and one thing only: a right to sue others. A patent owner can ask a court to order an accused infringer to stop practicing the precise invention (and substantial equivalents) covered by the patent and to pay damages for the infringement—nothing else. A patent does not give its owner the right to do anything except threaten or pursue such litigation. If I own a patent covering a cell phone that can record a video and transmit that video to a recipient, I have absolutely no right to make or sell that phone if it infringes someone else's patent. For example, assume someone else has an earlier patent covering a cell phone that can record a video. My patent is for an improved cell phone that can both record and transmit a video. However, my patent does not give me a right to make, use or sell a product that infringes someone else's patent, such as someone else's patent on a cell phone that can record a video, even if their patent has nothing to do with video transmission. My patent gives me one right only: to sue infringers.
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