Updated: January 20, 2022
A patent is a right of the patent owner to exclude others from making, using, selling, offering for sale, and importing the invention into the United States. A patent provides:
- an exclusionary right, not a right to do something;
- a remedy only for specific actions of others that infringe the exclusionary right;
- protection only in the United States or the country in which the patent has been issued.
- Exclusionary Right
A patent is a grant by the government of a right to exclude others from certain activities (i.e., make, use, sell, offer for sale, import) a patented product into the United States. A patent does not provide the patent owner the right to make a product. Only certain governmental entities or approved governmental entities are given a right to do something. For example, electricity, gas, toll roads are given the right to provide these products and services to the public. These entities are monopolies in its truest sense since they are given the right to provide these products and services. Patents may at times be referred to as a monopoly, which is technically incorrect, but they are a close cousin to a monopoly with a number of IFs.
If your product is new and nonobvious, if the patent office grants you a patent, if you are willing to enforce your patent, if you have the funds to enforce your patent, if your patent is broad enough to provide meaningful protection and if there is market demand for the patented product, then the patent can operate similar to a monopoly since you will be the only one to be selling the patented product.
- Only specific actions constitute patent infringement
A patent provides the patent owner an exclusionary right, but that exclusionary right is only for specific actions, namely, making, using, selling, offering for sale and importation, or indirectly helping someone else to infringe the patent. Under U.S. patent laws, these are the only actions that constitute patent infringement. A mere offer to sell an unauthorized patented product could constitute patent infringement. Making one unauthorized patented product for personal use could constitute patent infringement. In contrast, exportation does not constitute patent infringement. However, although the exportation is not a patent infringement, the sale of the unauthorized patented product to a foreign buyer may constitute patent infringement.
Liability for patent infringement can be established through direct patent infringement. This is where the alleged infringing person does the unauthorized action of making, using, selling, offering for sale, or importing. One step removed, liability for patent infringement can also be established if the alleged infringing person helps another to directly infringe the patent under a theory of indirect patent infringement. For example, if a person provides an instruction sheet on the internet on how to build a patent product, the person can be liable for the inducement of patent infringement. If the person provides a crucial element of a patented product that can only be used to make or use the patented product, then the person may be liable for contributory infringement.
- Protection only in the United States
A U.S. patent provides no patent protection in China, Europe, or any other country in the world, and vice versa. A single worldwide patent does not exist. However, there are a few narrow circumstances where activities outside of the U.S. may constitute infringement inside the U.S.
A number of countries have joined patent-related treaties in order to ease the cost of pursuing a patent in their country until the inventor can find out more about the marketability of their invention. The most popular global patent treaty is the Patent Cooperation Treaty. Read more about the pros and cons of worldwide patent protection. However, in the end, a patent application must be filed in each specific country and issued as a patent where patent protection is desired.
I invite you to contact me with your patent questions at (949) 433-0900. Please feel free to forward this article to your friends. As an Orange County Patent Attorney, I serve Orange County, Irvine, Los Angeles, San Diego, and surrounding cities.