A patent is a grant by a government of the right to stop others from making or using or selling the patented invention in its territory.[1] A patent gives its owner the right to sue infringers[2] and, if successful, to obtain an injunction against further infringement,[3] an award of damages[4] and, in some instances, increased damages[5] and attorneys’ fees.[6] A patent is not a permit or license to make or sell an invention, thus a patent does not guarantee the patent owner the right to make and use the patented invention. For example, the owner of a patent on an improvement to an invention previously patented by another may not be able to practice the improvement without the permission of the owner of the earlier patent. In such a case the later patent is said to be “dominated” by the earlier patent.[7] The purpose of obtaining a patent is not to guarantee the right to market the invention, but to protect the invention by stopping others from making, using, or selling it.
[1] 35 U.S.C. §271(a) provides. “Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”
[2] 35 U.S.C. §281 provides: “A patentee shall have remedy by civil action for infringement of his patent.”
[3] 35 U.S.C. §283 provides: “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” While injunctions had become almost automatic in patent cases, in eBay v. MercExchange, LLC, 126 S.Ct. 1837 (2006) the Supreme Court instructed that the grant of an injunction is always subject the principles of equity, and requires a show of (1) irreparable injury; (2) inadequate remedies available at law; (3) balance of hardships favoring injunction, and (4) that the public interest would not be disserved by a permanent injunction.”
[4] 35 U.S.C. §284 provides: “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.”
[5] 35 U.S.C. §284 provides in part that “the court may increase the damages up to three times the amount found or assessed.”
[6] 35 U.S.C. §285 provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”
[7] Rolls-Royce Ltd. v. GTE Valeron Corp., 231 USPQ 185, fn. 9 (Fed. Cir. 1986)(“ In any event, that someone has a patent right to exclude others from making the inventing claimed in his patent does not mean that his invention cannot infringe claims of another’s patent broad enough to encompass, i.e., to “dominate”, his invention.”)