Squatting in the Public Domain: Part One
OK, so patent laws are complex and the courts have decided to keep changing the rules. We have deal with it. However, I strongly believe and will argue in this blog that strong patent laws accelerate innovation and the limited monopoly provided in exchange for disclosing and enabling an invention can be arranged as a fair exchange. An ideal patent is balanced such that only “inventions” are found to be patentable and the claim scope granted in the patent is commensurate with the invention. In such a system, the public would benefit equally with the inventor from disclosure and use of an invention. However, implementing a system of laws that defines what is useful, new, nonobvious, clear, and enabled and thus eligible for a “right to exclude other” from performing has proven complex.
The complexity, exacerbated by frequent changes in the law by the Supreme Court and the Court of Appeals for the Federal Circuit, has created a grey area between technology that may protected by enforceable patented technology and technology that is in the public domain. For example, the patent office due to budget problems and frequent examiner turn over has issued patents with questionable validity. Further, several court decisions have moved enforceable patents from enforceable intellectual property to the public domain. These patents are left “squatting on the public domain.”
These squatters are costly to business and a drag on the innovation. Businesses must decide how to deal with these squatters. Here are the options:
- Design around Squatting Patent;
- Invalidate the Squatting Patent:
- Reexamination – ex parte reexamination or inter partes reexamination; or
- File declaratory judgment suit if threatened;
- License the Squatting Patent; or
- Produce the product and risk “infringement suit.”
There certainly is value in owning even unenforceable patents. In fact, every patent holder should understand whether they are merely squatting in the public domain to understand the value of their own patents. More later . . .
