Monday Morning Rant

Ethics

Okay, so I open up my Texas Bar Journal and there’s a short piece called “A guide to securing a patent (part one).”  Here is the first sentence:  “A patent is a grant by the U.S. Patent and Trademark Office for a limited time right to allow only the inventor or owner of the patent to practice the invention.”

First person to spot the error gets their name published along with their observation in the comments section!

Seriously….  this is obviously a fundamental misconception about patents, and so why start with it in a column for generalists?

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

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18 thoughts on “Monday Morning Rant”

    1. 6.1

      Some would say, Fish, “Don’t miss Texas.” Others, “Don’t, Miss Texas.” Still others would say, “Don’t miss, Texas” or was that “I don’t miss Texas?”

  2. 5

    Can you give us the name of the “author.” It would be interesting to see if the joker was a patent attorney or some general attorney. The latter strut about calling themselves experts, while committing malpractice left and right.

    1. 3.1

      The added wrinkle comes from “improvement patents” as signified by 35 USC 101:

      or any new and useful improvement thereof

      and the understanding that a separate inventor can have rights that build on someone else’s rights.

      Since the underlying (and separate) invention cannot be conscripted away, the overlying improvement inventor cannot possibly be understood to have a right to practice an improvement that would require practicing someone else’s underlying invention. The “negative right” nature of patents is thus built in at the most basic level.

  5. 2

    Gives the right to exclude, not the right to practice.

    After eBay, it’s more like a right to try to exclude.

    1. 2.1

      Arguably, eBay cannot change the nature of what a patent is as dictated by the constitution, nor change the rules as set (that is, law written) by the branch of the government – the only branch of the government – so designated to write patent law.

      Reading a map just is not the same thing as writing a map.

    1. 1.1

      Bonus points: what is the name of the Supreme Court decision (still controlling law) that makes this distinction very pronounced?

      (hint: it was a 1908 case)

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