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Cogent reasons why a Patent per se is not a Monopoly
1. A monopoly is something in the public domain that the government takes from the public and gives to a person (like in the famous British case of the playing cards). An invention is something that did not exist before and was not in the public domain. It is something novel, that upon publication of the patent (application) enriches the public domain with the knowledge of the invention, and upon expiration of the patent, enters into the public domain, free to be used by anyone. A true antithesis!
2. In other words, “How can you have a monopoly on something that’s novel and, therefore, never existed in the market” (Don Banner). Indeed!
3. According to our patent legislation, a patent is “personal property”, like any other personal property (35 U.S.C. § 261). The term “monopoly is a nasty buzzword that appears absolutely nowhere in the patent statute.” (Chief Judge Markey)
4. According to the 1995 DOJ/FTC Antitrust Guidelines, patents are “comparable to any other form of property,” are “not presumed to create market power” and licensing patents is “generally pro-competitive.” This marks a 180-degree turn in their policy.
5. If anything, patents intensify competition; they can lead to many improvement patents as competitors are motivated to “invent around.” Patents are “potential antimonopoly agents.” (Judge Rich)
6. Even if a patent is misused and becomes temporarily unenforceable, it still is not a monopoly, unless there was market power. Misuse can be purged and when dissipated, enforceability is restored.
7. Patenting is a neutral act and a patent does not even grant a positive right to make, use and sell the patented invention but merely a negative right to prevent others from making, using and selling such an invention.
8. The patent right or property is too severely restricted in terms of duration and scope and beset by three dozens of reasons for invalidity and unenforceability to be considered a monopoly.
9. The Supreme Court also has dropped the old “monopoly” rhetoric, replacing it by “a recognition that the right to exclude in intellectual property is no different in principle from the right to exclude in physical property.” (Judge Easterbrook)
10. There are almost always alternatives available to the public — prior art alternatives, alternatives that are obvious and hence not patentable and alternatives provided by improvement inventions.
11. A patent is not a guarantee that the patentee will ever earn anything from the right to exclude others.
12. McCarthy’s Desk Encyclopedia of Intellectual Property also asserts that “A Patent Is Not a ‘Monopoly’” and decries that “Misuse of Term Persists.”
Because of the extremely negative connotation of the term “patent monopoly” that inventors and innovators are reprehensible monopolists rather than great public benefactors (with deprecatory effect also on patent law and patent lawyers), better terminology to use is: patent property, patent grant, patent right, exclusivity or simply patent. Also to be avoided as nonsensical: “artificial monopoly,” “desirable monopoly,” “government-sanctioned monopoly,” “legal monopoly,” “limited monopoly” or “temporary monopoly” or even “government-granted legal monopoly.”
Let’s stamp out “unthinking monopolophobia” (Chief Judge Markey) and” slander of patents” (Robert Sherwood).
Karl Jorda
