First to File: Patents for Today's Scientist and Engineer

Chapter 8 The View from the Infringer's Side: Challenging a Patent's Validity

Taking the Constitution of the United States at its word, the purpose of the U.S. patent system is “To promote the Progress of Science and the useful Arts,” that is, to encourage technological advance by rewarding innovation and creativity, the reward consisting of “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” For inventors, this means granting the inventor the power to exclude others from practicing the invention, despite requiring the inventor to provide to those who are excluded a set of detailed instructions on how to do precisely what they are excluded from doing. The logic may be debatable, but this has always ultimately been accepted as a general proposition, even when the power to exclude places those who are excluded at a competitive disadvantage. When the power to exclude has a destructive impact, the patent is often referred to as a blocking patent, a term that does not have a single definition. When loosely applied, it can simply mean a patent that prompts a commercial entity to redirect its business strategy. In extreme cases, however, it can mean a patent that prevents or inhibits commerce or business development in a major industrial or commercial sector and even one that prevents or inhibits technological advance itself. Whether its impact is large or small, a blocking patent can upset the plans of a start-up ...