Claiming Claims

So, a patent does not give you a right to use your own invention.  Actually, this is not strictly true in all cases, and this is partly due to the manner in which patent systems handle exclusivity.  The modern patent system use "claims" to demarcate the border of exclusivity.  A claim is basically a single sentence that is meant to encapsulate the concept of the invention in a format that can be compared against the infringing product or method.  This is a straight pattern-matching exercise (with a penumbra of fuzziness introduced by something called the Doctrine of Equivalents).  

Patent practitioners, early on, introduced some very basic concepts from logic and set theory into claim interpretation.  Most claims, in particular in the non-chemical arts, use "comprising" in the preamble, which means that the elements recited in the claim are a minimally necessary and sufficient condition for infringement.  In the chemical arts, one will often see a more restrictive preamble, variants off of "consisting", which imply that the elements represent a complete set.  Add more, and there is no infringement (well, depending on how significant the thing you added).  What is interesting is a typical chemical patent claim can afford the patentee what is effectively exclusive use of their invention, in a way that no typical software or hardware patent claim can.  And issues of claim ambiguity are exacerbated in the non-chemical arts where the definition of claim elements is not tied to well-accepted scientific categorizations.  One must wonder whether these differences underlie the perceived split between the industries on issues of patent reform.  

Exclusivity Grants

I have never liked the term “intellectual property”.  It feels more PR-inspired than enlightening and, unfortunately, often masks some important distinctions between a historically-complicated set of ideas.  My general inclination, when I used to teach an IP seminar, was to use the term “exclusivity grants”: the notion being to emphasize the governmental role (IP being a “grant” from the government) and to emphasize “exclusivity” as being the touchstone of all IP.  

Even the conventional notion of “exclusivity” breaks down a little bit when you dig deeper into the details.  Most people, I think, have a good grasp of the concept of exclusive use of a trademark or a copyrighted work.  Many, however, do not understand that one does not get exclusive use of a patented invention.  Unlike trademarks (where use of the mark is a regulated requirement) and copyrights (where control of copying is used to control other aspects of the work), patents are an odd beast.  Under Section 271, you get the right to exclude others from using your invention.  You get no right to use your own invention.  It is ironic, but, in a sense, “use” of your own invention is exactly what you have given up when the government decides to move its regulation of technology to a patent system regime.