Why Negative Rather Than Positive Patent Rights?
Q: Over the years, I have heard about many inventors who have died penniless because of having to defend their patents in court. There being no “patent police,” inventors have to keep an eye on the marketplace, and go to court to defend their patent. Why is the law written so that the inventor must spend so much money defending his or her patent? Why is it not written more “positively,” rather than “negatively?” A: A significant aspect that may be difficult to appreciate without experience is the Patent Office examination of a patent application involves a parallel and distinct review from the thrust of substantive decisions made in exploitation, including enforcement, of an issued patent. On the one hand, the legal and technical skills in patent preparation and patent analysis are complementary. On the other hand, the third party subject matter is different: rather than prior art, the subject is an accused device. Further, the focus of the claims review is different: rather than disti
