Patents are legal instruments that provide inventors with exclusive rights over their patent protected innovations for a period of about 20 years. In other words, these rights allow inventors to prevent others from making, using, selling, offering for sale or even importing their invention without their permission. However, this exclusivity also poses a challenge for those who want to use technology that is already patented.
If you want to use a patented technology, there are multiple ways to use it.
1. Obtain a license for the patent protected invention
The most common and recommended way to use the patented technology is that you should obtain a license from the patent holder to legally use the technology. A license is essentially an agreement between the patent holder and another user of the patented technology. A license minimises risk of patent infringement and allows the user to use the patented technology in exchange for some form of compensation, which is typically monetary (fee or percentage of profits etc.). In some cases, the compensation can be a cross-licensing agreement (the user allows the patent holder to use some of the other patents that the user owns). Licensing can be a straightforward process if the patent holder is willing to grant a license. However, it can also be complicated, sometimes even involving litigation, if the patent holder is not willing to grant a license or if the terms of the license are not acceptable to either party.
2. Using expired/abandoned patents
Another way to use patented technology is if the patent has expired or if the holder of the patent has abandoned the patent. Once a patent has expired (for instance, 20 years have already passed since the filing date of the patent), the technology is considered to be in the public domain and can be used by anyone without obtaining any license. Similarly, if the patent holder abandons the patent, it would also fall into the public domain.
Abandonment is different from expiry in that the abandonment can happen any time after filing and before expiry of the patent. This may be happen because of several reasons such as business value of the patent to the patent holder, cost considerations, rejections from patent offices and so on. Expiry on the other hand, by definition, happens only when the term of the patent (20 years) is completed.
3. Challenging validity of the patent
A third but indirect way to use the patent protected technology is to successfully challenge the validity of the patent in Court or in the Patent office. In some cases, it may be possible to prove that the invention was already known or obvious to the public before the patent application was filed. For instance, a prior art already anticipates the patented invention and therefore, the invention is not novel and non-obvious as per the patentability criteria.
However, this strategy may also have repercussions because the patent holder, in some cases, may also take countermeasures against the party who challenges the patent. For example, the patent holder may also challenge the validity of other patents owned by the challenger or even take legal action against their products for infringing on other patents held by the patent owner.
It is also a good idea to consult with a patent attorney before using technology that is patented. A patent attorney can help you understand the legal landscape and help you navigate the process of obtaining a license or challenging the validity of a patent. They can also help you understand the exceptions to patent infringement and advise you on the best course of action in your specific situation.
