A Proposed Defense to Patent Infringement

Authors

• Alfonso Garcia Chan

Abstract

The American patent system is a major catalyst for technological progress and economic growth. In most cases, the system works well to achieve those ends. In rare but significant circumstances, however, the patent system can be manipulated to suppress technological progress. Unlike patent rights in other nations, the American patent grant is a negative right to exclude others. Thus, the patent owner need not practice or license others to practice the invention. Indeed, a patent owner has the right to do nothing for the lifetime of the patent. A patent owner's lack of action, however, could prevent progress in a specific area if the invention is a necessary step before other developments can occur.

This article proposes a defense to injunctive relief in a patentinfringement case - a defense available when the owner's rights threaten to improperly override the public's interest. The article first discusses patents - including the nature of the American patent, its purposes in society, and its potential to stifle technological development. The article then discusses how the proposed patent defense is reconcilable with the purposes of patent law and foreseeable problems with the proposed defense.

Recommended Citation

Alfonso Garcia Chan, A Proposed Defense to Patent Infringement, 3 Computer L. Rev. & Tech. J. 79 (1999)