PATENT RIGHTS ARE RIGHTS TO EXCLUDE - Patent law

In spite of the many shades of ownership interest and the corresponding rights to which that ownership interest represents, there is often one very important right that is common to property owners and that is the right to exclude others from the property, at least up to the extent the owner owns the property. So even though the owner may be limited in her own ability to affirmatively use or enjoy the property, she usually retains the power to exclude others from using or enjoying the property. Thus,although a person with a suspended or revoked driver’s license might not be able to legally drive the car that she owns, she still can decide whether another individual may use the car. Likewise, consider a landowner who owns a piece of land but cannot legally hunt on it because she does not have a hunting license. Despite the fact that she cannot legally hunt on her own land, she still might have the power to decide whether another person who has a hunting license can hunt on her land. In both of these examples, the person owning the property does not have the legal right to enjoy that property in certain ways but she still, as the legal owner, has the power to exclude(or allow) others to use the property for those same purposes. From a commercial standpoint, this power to exclude or allow is significant because one can potentially make tremendous economic benefit of this legal right. A person without a driver’slicense might still own hundreds of automobiles that she rents out to others or the landowner who doesn’t have a hunting license might still make significant revenue renting out her land to hunters. This aspect of property ownership is a cornerstone of the economics of commerce and property—if an owner did not have the power to exclude, the power to allow would have little value because nobody would want to pay for something she could otherwise get for free.

So what does all this have to do with patents anyway? The answer is that patent rights are in certain very important ways similar to property rights, and one might think of the claims1 in a patent taking the place of the deed to a piece of real property or the title to an automobile; the claims of the patent define the “metes and bounds”of the property in the same way that a deed to real property or a title to an automobile describes those pieces of property. Instead of a patent owner, we typically refer to that person as the patent assignee, but the effect is the same. In the same way that a person holding legal title to a piece of real property such as land might be able to lease her land to another party, so might a holder of a patent license lease some or all of her stake in the claimed invention. However, we have already seen that holding the deed to the property does not necessarily give one unlimited rights to the property; think back to the car owner who couldn’t drive her own car or the landowner who could not hunt on her own land. The same is true for patents, and this is one of the most conceptually difficult but important concepts in patent law to understand. Owning apatent does not grant one the right to “do” the thing that the claim describes. Owninga patent grants its owner the right to exclude others from practicing the claimedinvention.


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