What Rights Patents Do and Don’t Provide

A common misconception about patents relates to the rights granted by a patent, and, more particularly, to the rights not granted by a patent. In other words, it’s not what you get with a patent, but what you don’t get that becomes a bit confusing.

For many, owning a patent means that they are the only ones who can practice the claimed invention. This is false. A patent provides the owner with the right to stop others from making, using, selling or offering for sale the patented invention. In particular, a patent does not provide the owner with the right to practice his or her own invention.

For example, let’s assume that you love BBQ and ice-cream (like I do). So, you come up with this idea of a combined barbecue grill with a built-in freezer and obtain a patent on this invention. Your friend gets a hold of your idea and thinks of adding a hitch so that this fabulous grill-freezer combo can now be attached to the back of a golf cart for some portable grilling and chilling. Your friend then patents the grill freezer combo with the hitch.

Q: Can your friend make the grill-freezer with the hitch? A: No – at least not without your permission – because the grill-freezer combo with the hitch would infringe your patent.

What good is having a patent then? Your friend can stop you, or anyone else for that matter, from making a grill-freezer combo with a hitch.

Thus, as shown above, it is possible that one can obtain a patent on an invention that infringes upon another’s patent. For a discussion on the differences between patentability and infringement, see here.

If a patent does not provide the owner with the right to make a product, you might wonder why we always see products marked with patent numbers.

Therefore, do not assume that you automatically have the right to make, use, advertise or sell your invention simply because it is patented. Such a misunderstanding can cost you dearly.