obvIPat - Obviously Patentable

The blog for inventors, in-house counsel, & entrepreneurs.

Patent Claims Are Like Property Deeds-Not Exactly!

by Orlando Lopez

In describing patents, analogies are often made to real property, such as a house, the lot, and other physical property that you own and use.  But there is one significant difference.  Patents only give you the right to exclude others from making, using or selling the invention described in the patent claims, they do not give you as the patent owner the right to make, use or sell the patented invention.  Although we say that patent claims are like the metes and bounds of a property deed, owning real property provides both the right to exclude (get off my land!) and the right to enjoy or use.  Realizing the difference between patents and real property is important to an understanding of “blocking patents,” that is, patents that exclude the extension of another patent.

Furthermore, the right to exclude has been limited recently by the Supreme Court in Ebay v. MercExchange, where the Supreme Court placed limits on the granting of injunctions that prevent infringers of your patent from making their products; however, monetary damages are still possible.  This is like saying that if somebody set up a pup tent on a lot that you own, you can not go out there and tell them “get out!”  If they say “I am willing to pay you rent,” they can stay.  There are reasons for the Supreme Court decision, among them the uproar over nonpracticing entities (also known as “patent trolls”).  So in looking at your patent claims, remember that they only give you the right to exclude and if you don’t practice your invention, that right to exclude can be limited.


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