The New York Times Discovers That Patents Are Weapons
Following IntellectualIP’’s recent coverage of Judge Posner’s potential anti-competitive effects of patents, here, Sunday’s New York Times has a story by Steve Lohr and Charles Duhigg titled “The Patent, Used as a Sword.” The story is Part 7 in the Times’ series “The iEconomy.”
The first notable thing about the article is the title: “The Patent, Used as a Sword.” A common misconception of patents is that they entitle inventors to practice or make the process or thing they invent. They don’t. A patent is only a right to exclude others, not a right to do or make any process or thing. To use the author’s paradigm, a patent is always an Excalibur, never an Aegis.
A patent is a right to sue someone else who makes, uses, offers to sell, or sells any patented invention. See 35 U.S.C. § 271. It’s not a right to do any process or make something, even if the patentee invented that process or thing.
A classic example involves mouse traps. Suppose Mike invents and patents the mousetrap that eliminates 95% of the mice that attempt to take cheese from it. Katy sees Mike’s patented mousetrap and patents an improved version of it, which eliminates rats 99% of the time. Suppose Mike’s patent covers a one-spring mouse trap, and Katy’s patent improvement is directed to a two-spring version.
Katy has no right to make, use, or sell her improved mousetrap without Mike’s permission. Mike’s patent covers any mousetrap having one spring—including those that have one spring plus other springs. Mike’s patent is a “sword” against any later mousetraps that have one (or more) springs. If Tom comes along and invents an even better three-spring mouse trap, he can’t make or sell his mousetrap without Mike’s and Katy’s permission.
An early, broad patent will cover later innovation that falls within its scope. That later innovation is subject to the earlier patents that cover it, and later innovators may not have the right to practice their innovation, even if it’s new and non-obvious.