Patent: Difference between revisions

Revision as of 05:56, 22 May 2006

Revision as of 08:28, 22 May 2006

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A patent is an exclusionary right-it gives the right to exclude others from infringing the patent, but that does not necessarily give the owner of the patent the right to exploit the patent. This is so since many inventions relate to improvements of prior inventions which may still be covered by someone else's patent. For example, if an inventor takes an existing patented [[mouse trap]] design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement.

Patents canare only betypically enforced through [[litigation|civil lawsuit]]s (for example, for a US patent, by an action for patent infringement in a United States federal court). Typically, the patent owner will seek monetary compensation for past infringement, and will seek an [[injunction]] prohibiting the defendant from engaging in future acts of infringement. In order to prove infringement, the patent owner must establish that the accused infringer practices all of the requirements of at least one of the claims of the patent.

An important limitation on the ability of a patent owner to successfully assert his or her patent in civil litigation is the accused infringer's right to challenge the validity of that patent. Civil courts hearing patent cases can and often do declare patents invalid. The grounds on which a patent can be found invalid are set out in the relevent patent legislation and vary between countries. Often, the grounds are a sub-set of the requirements for [[patentability]] in the relevent country.

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Fourth, many believe that patent rights create an incentive for companies to develop workarounds to patented inventions, thereby creating improved or alternative technologies that might not otherwise have been developed.

One interesting side effect of modern day patent usage is that the small-time inventor can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital quickly from licensing the invention and may allow rapid innovation to occur because he/she may choose to not manage a manufacturing buildup for the invention. Thus, time and energy can be spent on pure innovation and allow others to concentrate on manufacturability. Which leads to a greater division of labour, and hence to more rapide and sustainable economic growth, as per Adam Smith.

===Criticism===

There are arguments in opposition to patent rights. Granting a patent confers a "negative right" upon a patent owner, because he or she may legally exclude competitors from using or exploiting the invention, even if the competitor subsequently (either subsequent to the date of invention, or to the [[priority date]], depending upon the relevant patent law - see [[First to file and first to invent]]) independently develops the same invention. It is argued that monopolies create inefficiency, and that since the grant of a patent is, supposedlyessentially, the grant of a monopoly, the patent system may stifle [[competition]] and result in higher prices, lower quality, and shortages. Although this arguments has failed to be demonstrated in reality, the main reason being that all property is a monopoly right conferred to the owner that property, and hence; patent rights are akin to property rights, which always tend to contribute to the general good.

A more subtle problem with patent rights was put forth by law professors [[Michael Heller (law professor)|Michael Heller]] and [[Rebecca Eisenberg]] in a 1998 ''Science'' article. Building from Heller's theory of the [[tragedy of the anticommons]], the professors postulated that intellectual property rights may become so widely fragmented that, effectively, no one can take advantage of them as to do so would require an agreement between the owners of all of the fragments.