Does a patent give me the right to use my invention?
FollowIt is often conceived that a patent gives the right to the patent owner to use his invention. This conception is extrapolated to mean that, if a patent owner sells a product that is based on the invention that is protected by his own patent, then he will not be liable to infringement on others’ patents. This understanding, rather misunderstanding, sometimes becomes the basis for filing a patent application.
To bust the above myth, let us step back and look at the concept of patenting. A patent is granted to an inventor for an invention. This invention need not be something out of the blue; rather, a subject matter is considered to be an invention, as long as it is a new product or a new process involving an inventive step, which makes it non-obvious to a person with ordinary skill in the related technology. Now let us consider a simplistic example to better understand this concept.
Example:
Person “X” applies for a patent on a product that has the modules A, B, C and D.
The patent office examines the patent application and identifies 3 existing patents; the first one covering module “A”, the second one covering module “B” and the third one covering module “C”. In spite of these existing patents, the patent office is convinced that a product comprising modules A, B, C and D has inventive step, which makes it non-obvious to a person with ordinary skill in the related technology, and hence grants a patent.
The granting of the above patent only means that a product comprising modules A, B, C and D, according to the patent office satisfies the requirement of patentability. In other words, granting of a patent does not mean that, the patent office grants a permission to commercialize the patented invention, and guarantees that such commercialization will not violate others’ patent rights.
In the above example, if the patent owner, despite of having a patent granted, commercialises his patent invention, by selling a product based on his patent invention, could end up infringing the 3 existing patents, which covered modules A, B and C individually.
From the above example and the discussion, one can understand that, it would be unpractical for any legal system to grant the right to commercialize the patented invention to the patent owner.
Hence, the patent system, on the other hand, gives the patent owner the right to prevent third party, who do not have his consent, from the act of making, using, offering for sale, selling or importing the patented product in the jurisdiction covered by the patent. Similarly, if the patent is grated to a process, the patent owner gets right to prevent third party, who do not have his consent, from the act of using that process and also from the act of using, offering for sale, selling or importing the product obtained by that process in the jurisdiction covered by the patent.
We hope you found this article useful. You may be interested in reading our article "Can the details of my invention disclosed in the patent application be maintained as a secret?"
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