Patent Rights: Protection, Permission, and Infringement Explained

By Lauryn Bishoff

The grant of a patent confers “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” [1] A patent does not grant the right to make, use, offer for sale, sell, or import the invention, only the right to exclude others from doing so. This distinction matters because exercising a patent may still infringe on the rights of others (for example, if an aspect of the invention is already covered by an earlier patent) or violate applicable laws.

In general, the term of a utility or plant patent is 20 years from the date the application was filed in the United States or international filing through the Patent Cooperation Treaty (PCT). During this term, the patent owner can prevent others from making, using, selling, offering to sell, or importing the patented invention. [1] This exclusionary right enables the owner to take legal action against infringers, license the patent to others in exchange for royalties, sell the patent, or enter into cross-licensing agreements with other patent holders. If others wish to make, sell, or use the invention, they must obtain explicit permission from the patent holder, typically through a license agreement or through a purchase of the patent rights. [2]

Regarding infringement, it is sufficient for just one claim of the patent to be infringed for the entire patent to be considered infringed. [2] In such cases, the patent owner may file a lawsuit in federal court, seek an injunction to stop further infringement, and request monetary damages as relief.

References

[1] U.S. Patent & Trademark Office, Managing a Patent: Manage Your Patent Rights, Patent Basics, https://www.uspto.gov/patents/basics/manage#rights

[2] BitLaw, Patent Rights (Patent Law), https://www.bitlaw.com/patent/rights.html