Patents were envisioned to bolster innovation. Innovation is essential to taking mankind to the next level. Since, the 1700s, patents have proven to be a great tool for development. A positive correlation between development and patents is well-known.
But we see that in developed countries where the patenting system is strong, people are not able to afford drugs and many other patented products. The reason is a monopoly. No wonder some call patents evil rights.
So to answer the question of whether patents have positive or negative rights, The answer is that, in a way, patents are negative rights.
You might be wondering what does “negative right” mean? Why don’t patents have positive rights? or Why do patents have negative rights?
The patent is a negative right because it doesn’t guarantee whether you can use your patented technology. However, it does guarantee that you can stop or exclude others from using your patented technology.
To understand the question and its answer comprehensively, first, we will have to know about positive and negative rights. Moreover, it’d be apt to talk about the nature of other forms of intellectual property rights. Let’s delve into the topic right away.
Why is Patent A Negative Right?
Patent itself doesn’t grant you the right to do anything that you want to do. If you own a patent, you have a monopoly over the patented invention.
Doesn’t a monopoly over invention mean you can use the invention in any way you want? The answer is No.
Patent acts as a red signal of traffic light for others. However, it certainly doesn’t act as a green signal for you as a patent owner.
If you own a patent then you have the monopoly to stop others from making, selling, using, importing and marketing, etc.
But you yourself can’t do any of those things mentioned in the last paragraph just because you want to do it.
That is exactly what a negative right is.
Let’s look at what is a negative right? It would be better if we understand the concept of negative rights in light of positive rights.
Positive and Negative Rights: Comparison
| Negative Right | Positive Right |
| A negative right obliges others to refrain from certain activities. It forbids certain actions from others. The word negative here doesn’t refer to something bad. | A positive right imposes an obligation to others to do certain things. It requires certain actions from others, to provide you with either a good or service for example. |
| Consider right to privacy as an example of a negative right. To protect this right, others are refrained from intruding into the private life of a person. Another example of a negative right can be right to do whatever one wants to do with one’s property. | These are sometimes referred to as welfare rights. These rights ensure that basic needs of people are met to secure their well-being. Consider one’s right to education for example. This right requires assistance from other people including the state so as to take care of one’s education. Other examples would be right to food, right to medical care, right to job, etc. |
| To protect one’s negative right, a ‘negative duty’ is imposed on all others. This means the duty to not interfere with one’s actions in certain areas. | To protect one’s positive right, a “positive duty” is imposed on others. This means the duty to provide positive assistance in fulfilling basic human needs such as health and education. |
Now, that we have a basic understanding of negative rights, We can safely say that a patent right that excludes or refrains others from performing certain actions (making, selling, importing, marketing, using, etc.) falls under the category of negative rights.
Let’s look at a few examples of how the exclusion of others through patents plays out in the real world.
Example 1
Suppose you have developed a formula for a drug and have got it patented. Now that you have a monopoly over your invention, you’d want to manufacture & sell it.
But here is the catch. You can’t just manufacture and sell a drug in any country. You will have to go through many certifications and regulatory authorities. Before selling the drug en masse, you will have to conduct various trials of the drug and its effects.
Other important factors such as active pharmaceutical ingredient (API) availability, patient population, etc. would have to be taken into account.
There are chances that the machines you are going to use are patented by others so you need permission from them as well.
In short, you can’t manufacture and sell the drug at your will just because you own the patent.
However, if someone else has figured out all the problems and decides to manufacture and sell the drug patented by you, you can stop him/ her if he/ she has not taken permission from you.
This example clearly depicts the negative nature of patent rights.
Example 2
Consider a scenario where a battery has been invented by inventor ‘A’. Further, inventor ‘B’ invented an electric vehicle that needs a battery to function.
If A refuses to provide batteries then B can’t operate the electric vehicle.
This way, the invention of B that is the electric vehicle can’t function without the permission of inventor A despite the fact that B owns the patent for the electric vehicle.
When people exercise their negative patenting rights, sometimes there comes a situation of “blocking patents” & patent thickets.
Discussion of blocking patents & patent thicket is incomplete without discussing their solutions which are cross-licensing & patent pool. So, let’s look at them in our next sections.
Blocking Patents, Patent Thicket, Cross licensing, Patent Pool
What is the situation of blocking patents?
Suppose, inventor ‘A’ owns a patent for a product ‘X’.
Another inventor ‘B’ comes up with a product ‘Y’ & owns a patent for it.
Moreover, Y is an improved version of X, and to manufacture product Y, product X is required.
In this situation, inventor A can block the manufacturing of product Y. In other words, B can’t manufacture his/ her own invention without the permission of A.
But it works both ways i.e. B can block A from manufacturing product Y as well.
Now, suppose a scenario where product Y is so good that product X becomes irrelevant.
In such a situation, product X is irrelevant and product Y can’t be manufactured.
So, the world would miss out on the best product because of this phenomenon of blocking patents.
Cross-licensing
Ideally, to escape this blocking patents situation, both inventors would reach an agreement to cross-license the patents of each other.
Or in other words, it can be stated that cross-licensing is a tool to avoid the situation of blocking patents.
So, to avoid litigation or to settle an infringement dispute, the instrument of cross-licensing is employed.
Cross-licensing is an agreement between two or more parties in which each party grants intellectual property rights to other parties. It helps involved parties to maintain freedom for bringing commercial products into the market.
Based on the above discussion, it can be concluded that cross-licensing wouldn’t work with the parties who don’t manufacture any product and are solely dependent on the royalty coming from their intellectual property. These are also known as patent trolls.
Patent Pool
Patent pooling is also a similar concept to cross-licensing. Patent pools can be defined as agreements between two or more parties holding the patents to license their patents to each other and to third parties.
As it is clear from the name, the patent pool is about patents only.
The first example of a patent pool in America we see was a patent pool arrangement done for a sewing machine in the 1850s.
Many a time there occurs a situation, where no one is able to come up with a single patent for a whole product, a sewing machine for example. So, there are usually multiple essential patents. The best way out is to pool such essential patents.
Patent Thicket
A patent thicket is a dense network of patents that protect different parts of complex technology.
When a new entrant has to enter into the technology, it has to find a way through the existing web of patents in the technology.
Further, the situation of multiple blocking patents and cumulative innovation in patent thicket can block the progress of the new entrant into the technology.
Not only patent thicket tries to stop the entry of new companies, but it also stifles innovation or discourages innovation.
Let’s look at the patent thicket in another way.
It was observed that in many technologies, a patent gains more value when it could be linked to other patents or used in combination with patents.
So, the collective value of patents presented more value to the patent owners.
This led to patenting of marginal inventions which would work great in a combination with each other.
This strategy resulted in a complex network of patents which we know as patent thicket.
When we look at patent thicket along with the negative patenting right, we can clearly see that a new entrant in the technology can’t even enter into areas where already a patent thicket or complex network of patents have been created by big older players.
To overcome, the patent thicket, tools like cross-licensing & patent pool are employed.
Conclusion
In this article, we tried to understand how patent rights behave practically. The common misconception is that if you own a patent, you can do anything related to a patented invention. We saw this is not the case.
Before getting into the nitty-gritty of why a patent is a negative right, we tried to answer what is a negative right. We thought it would be better to explain the negative rights in light of positive rights.
Next, we discussed various problems that arise because of the negative nature of patent rights. This discussion led to the problems of blocking patents & patent thicket along with their solutions cross-licensing & patent pool.
Next, we have tried to address a few related queries in FAQ format.
FAQ
Are trademarks a negative right?
In a way, yes. Trademarks give you the right to stop others from using them. As this situation falls into the definition of a negative right, it’d be appropriate to term trademark as a negative right.
Is copyright a negative right?
The copyright owner can restrain or refrain others from using it, so in short, the copyright behaves as a negative right.
What is patent ambush?
We are all aware that standards are set by organizations like IEEE, ETSI, 3GPP, etc.
It may happen that a member of such a standard-setting organization decides to withhold information when it participates in standard-setting activities.
Such information is usually about a patent that the member owns or has a patent pending or plans to file a patent that is relevant to the standard.
After the standard is set and adopted by entities around the world, that member who withheld information about its patent can claim that its patent has been infringed by the adaptation of the standard. This is a case of Patent Ambush.
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