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Thomas Kading: Patents Give You a Monopoly, Not Permission

People often incorrectly believe a patent gives you the right to make, sell, offer to sell, or otherwise use a particular thing. Patents do not in fact give you these rights. Patents give you the right to exclude others from making, selling, offering to sell, or using a particular thing. In effect, a patent provides a monopoly on a particular concept for a certain time period. A person can obtain a patent on a concept, but at the same time be prohibited from the actual use of the concept by other patents.

Hot Tub Example

For example, pretend someone held a patent that claimed the exclusive right to make, sell, offer to sell, and use a hot tub. Assuming the patent was with the United State Patent and Trademark Office (USPTO), that person would have the monopoly on hot tubs with typical covers in the United States. Another person could come along and invent a novel upgraded hot tub cover. Suppose the novel upgraded hot tub cover was not an obvious improvement of existing prior art (i.e. the typical cover). In that case, the second person could obtain a patent on the upgraded hot tub cover. Even if the second person was to obtain a patent on the upgraded hot tub cover, the second person couldn’t sell hot tubs with the novel upgraded hot tub cover unless the first person gave permission. Effectively, without the first person’s permission, the second person would have no right to make, sell, offer to sell, or use a hot tub with the upgraded novel cover. The second person could use the upgraded novel cover without the patented hot tub. Whether selling an upgraded hot tub cover without a hot tub is a marketable product is another question in itself. To understand this idea, I want to break down what is a monopoly and what is permission.

Monopoly Defined

A monopoly is defined as the exclusive control by one group. A utility patent gives the patent holder the right to prohibit others from making, selling, offering to sell, or using what is claimed in the patent. When you have the right to prohibit everyone else from making, selling, offering to sell, or using a concept, you effectively have a monopoly on that concept. Utility patents establish that monopolistic right for 20 years following the date on which the patent holder filed a patent application. In the previous example, the first patent holder has the right (i.e. monopoly) to prohibit the second patent holder from making, selling, offering to sell, or using the hot tub that is claimed in the first patent. The second patent holder has the right (i.e. monopoly) to prohibit the first patent holder from making, selling, offering to sell, or using the upgraded novel cover that is claimed in the second patent.

Permission Defined

To have the right to make, sell, offer to sell, or use a concept in the United States, there may be many types of permission a person needs to obtain. In the previous example, the second patent holder must obtain permission, such as a license, from the first patent holder in order to sell a hot tub. In the cited example, the second patent holder must receive permission from one other party. In reality, it is possible a business might obtain permission from multiple intellectual property owners to sell their product. A business wishing to sell a product not only has to consider whether its product infringes on patent rights owned by others, but also has to consider the regulatory requirements for the product. For example, a business selling a consumer product may need to comply with the Consumer Product Safety Commission as well as state law requirements. It is possible that an inventor could hold a patent on a concept that is prohibited by regulation. A patent does not alleviate or fulfill the requirements of regulation.

At the end of the day, a patent does not give you the right to make, sell, offer to sell, or use a concept. A patent simply gives you the right to exclude others from making, selling, offering to sell, or using a concept.

Fargo Patent & Business Law is an intellectual property and business law firm. We are always happy to talk to you if you have questions about trade secrets, copyrights, trademarks, patents, or other business law issues.

The information provided in this article does not and is not intended to constitute legal advice. All information, content, and material is for general informational or educational purposes

Written by Tom Kading

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