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Intellectual  Property

Exclusionary Right of Patent Ownership

by Jacob N. (Jesse) Erlich, Partner
Perkins, Smith & Cohen, LLP
One Beacon Street 30th Floor
Boston, MA 02108
617.854.4000
jacob_erlich@pscboston.com

Contrary to the belief of many, the granting of a U.S. patent does not give the inventor or patent owner the right to make, use, offer for sale, sell or import his or her invention but only the right to prevent others from doing so.  In fact, there are many instances when an inventor may be granted a patent on his or her invention and yet, due to prior unexpired more basic patents, be unable to make, use, offer for sale, sell or import the invention without obtaining permission, generally in the form of a license, from the holder of the unexpired basic patent.

For example, if Inventor A is the first person to obtain a patent on a pail and, at a later date, Inventor B obtains a patent on an improved pail having a handle, Inventor B. Although granted a patent to a pail having a handle cannot make, use, offer for sale, sell or import the pail having the handle without obtaining permission from Inventor A, the holder of the more basic patent on the pail.  Since Inventor A may find the pail unacceptable for sale to the public without the inclusion of a handle thereon, Inventor A may approach Inventor B with the idea of granting rights to one another in their respective inventions by cross?licensing their patents.  In fact, Inventors A and B may even start a business together to produce and sell the desirable pail having a handle.

Once the term of a patent has expired, the patent is placed in the public domain and anyone may make, use, offer for sale, sell or import the invention described therein as long as an unexpired patent is not infringed.

The information is provided for informational purposes only, and should not be construed as legal advice.

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