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By: Mark R. Malek

Ever since I started practicing patent law, one of the things that has continuously driven me nuts is when I hear people calling a patent a “monopoly” on a particular area of technology.  I’ll get into more detail below, but in essence, that is just not true.  This is one of the biggest mischaracterizations of patent law for a number of reasons.

First and foremost, the patent right does not provide someone with the right to make something, use something or sell something.  Close, but not exactly right.  All you have to do is ask yourself the following:  do I need a patent to produce something?  The answer here is a resounding NO.  The patent right provides the patent owner with the right to exclude others from making, using, selling, or offering to sell a product, process, etc. that is covered by the claims of the patent.  This is a very small distinction, but I always go back to the example that my professor in law school provided (many of you know this professor – Gene Quinn, founder of IPWatchdog.com and the partner in charge of our DC Office.  Incidentally, Gene Quinn posted a great article about this a couple of years ago). The example was “you can get a patent on a nuclear bomb – do you think that the government will ever let you make it?  Of course not.”

So here is that the patent right only gives you the right to exclude others from using your invention, it does not give you the right to make the invention.  I do understand some of the other arguments that support the fact that patents can be “monopoly like.”  In its purest form, a patent can act as a barrier to entry into the market.  In other words, the patent holder can bar others from entering the market, but to be fair, that barrier only encompasses the very specific space to which the claims of the patent are directed.  Due to the inventive nature of society, a great deal of people and companies are continuously improving technology.  That means that known technology is getting better every day.

Let’s take the cell phone, for example.  How far have we come in 15 or 20 years?  Do you remember the bag phones, or the phones that were like gigantic bricks (bringing back memories of Miami Vice, right?).  Now, due to the rapid advances in technology, I am able to achieve so much with my iPhone.  I could, if I have a ton of patience, even post this article from my iPhone.  Those of you who know me, however, know that such patience waived bye-bye to me years ago!

The point here is that it is not as though one company advanced the cell phone.  It is not as though there is only one cell phone manufacturer.  Why is that?  It is because the patent system does not really allow for a patent as broad as a cell phone to issue.  Claims are limited to very specific portions or programs or components of a cell phone.  Therefore, there is no “monopoly” on a cell phone, but there certainly is a monopoly like feeling to an Apple iPhone because Apple has several patents that protect the various features of the iPhone.  The answer to this is any phone that operates on the Android platform.

I guess what I am trying to say is that I do not believe that the term “monopoly” is accurate to use when discussing inventions that are protected by patent rights.  I really would welcome an open discussion on this.  I know that there are intellectual property haters out there that thing that patents and copyrights only serve to restrict the markets, and I will post more on that in future articles.  In the mean time, please feel free to share your opinion on this topic.