Things every client should know about patents

What legal rights does a patent owner have?

The patent statute (i.e., the black-letter text of the Patent Act appearing at Title 35 of the United States Code) answers this question fairly concisely:

“Except as otherwise provided,… whoever without authority [that is, without the patent owner’s permission] makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention, during the term of the patent therefor, infringes the patent.” Title 35, UNITED STATES CODE, § 271(a) (emphasis and bracketed material added).

Thus, if Alpha Corp. owns a patent covering the useful design of a widget its engineers invented, then, until the patent expires, Beta Corp can’t make the device described in Alpha’s patent claims in the U.S. without Alpha Corp’s permission or it will risk being sued for patent infringement. Even if Beta Corp. didn’t manufacture the device, it also cannot import, use, sell, or distribute in the U.S. an infringing device.

Does Alpha Corp.’s patent mean that Alpha can never be sued for patent infringement over the design of its own patented widget? No. Although Alpha Corp.’s widget design may absolutely have been deserving of the patent Alpha obtained, it is a simple reality that a single widget design may actually be covered by numerous patents issued to different inventors at different companies. Frequently, scientists and engineers at numerous companies in the same industry are simultaneously working on solving similar problems for similar products. When they do, they file patents, and, not uncommonly, when new products are introduced by Alpha Corp., it learns, over the course of time, that its product is not only covered by its own patents, but also by the patents of others.

How, then, does Alpha Corp. deal with the fact that its product is covered by other patents? By remembering that, in the field of intellectual property law, the best defense is a strong offense. Even though some aspects of its product may be covered by third party patents, by ensuring that it has patented important aspects of the product, Alpha Corp. ensures that its competitors cannot simply copy the most attractive features of its products without risking exposure to a lawsuit.