Nature of patents and patent rights | Spilman Thomas & Battle, SARL

When a patent is issued under the seal of the United States Patent and Trademark Office, it is signed by the Director of the USPTO or an official of the Office. The patent contains a grant to the patent owner, and a printed copy of the description and drawing is appended to and forms part of the patent. The granted patent confers “the right to prohibit others from making, using, offering for sale or selling the invention through the United States or from importing the invention into the United States. “. The term of the patent is 20 years from the date the patent application was filed in the United States or, if the application contains specific reference to a previously filed application, from the date of the first filing. these requests. The term of the patent is subject to the payment of maintenance fees in accordance with the law.

The exact nature of the right conferred must be carefully distinguished, and the key is found in the words “right to exclude” in the sentence just quoted. The patent does not grant the right to make, use, offer for sale or sell or import the invention, but only grants the exclusive character of the right. Anyone is normally free to make, use, offer for sale, or sell or import anything they like, and a government subsidy is not required. The patent only grants the right to prohibit others from making, using, offering for sale or selling or importing the invention. Since the patent does not grant the right to make, use, offer for sale, sell or import the invention, the right of the patentee to do so depends on the rights of others and general applicable laws. A patent holder is not allowed to make, use, offer for sale, sell or import the invention if it violates any law.

The inventor of a new automobile who obtained a patent on it would not have the right to use the patented automobile in violation of the laws of a state requiring a license, nor can a patentee sell an item the sale of which may be prohibited by law simply because a patent has been obtained.

Likewise, a patent holder cannot make, use, offer for sale, sell or import his invention if such action infringes the prior patents of others. A patentee cannot violate federal antitrust laws, such as through resale price agreements or entering into combinations in trade restrictions, or outright food and drug laws, under a patent. Normally, nothing prevents a patentee from making, using, offering for sale, selling or importing his own invention, unless he thereby infringes the patent of another who is still in existence. force. For example, a patent for an improvement of an original device already patented would be subject to the patent on the device.

Maintenance fees must be paid at four-year intervals to keep the patent in force. After the expiration date of the patent, it becomes essentially in the public domain and anyone can make, use, offer for sale, sell or import the invention without the permission of the patentee, provided that the material covered by other unexpired patents is not used. In some cases, the term of the patent may be extended for pharmaceutical products and in other circumstances if the law so provides.

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