Thursday, March 10, 2011

"It is axiomatic that a device meriting its own patent does not infringe any other patents."

Within a discussion of Festo in a law review article titled Foreseeable Trouble: How Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Offends Fundamental Policies of the U.S. Patent System by Making Prosecution History Estoppel Depend upon Foreseeability, 2003 B.Y.U.L. Rev. 309 by one Tony Caliendo , there is the statement

It is axiomatic that a device meriting its own patent does not infringe any other patents.

Duh! Somewhere in "patent 101," there's something about patents being rights to exclude, not rights to make.

From Merges and Nelson, 90 Colum. L. Rev. 839 , on blocking patents:

Two patents are said to block each tother when one patentee has a broad patent on an invention and another has a narrower patent on some improved feature of that invention. The broad patent is said to "dominate" the narrower one. In such a situation, the holder of the narrower ("subsevient") patent cannot practice he invention without a license from the holder of the dominant patent. At the same time, the holder of the dominant patent cannot practice the particular improved [p. 861] feature claimed in the narrower patent without a license. n96

Of the diode/triode matter, Merges/Nelson wrote:

The situation soon became similar to that in the aircraft industry, where different companies could block each other from using key components. A good example is the deadlock between the Marconi Company and the De Forest interests, a classic instance of blocking patents. Marconi's diode patent was held to dominate De Forest's patented triode, n232 yet neither party would license the other. n233 As a consequence, no one used the admittedly revolutionary triode for a time. This is a good example of a case where the reverse doctrine of equivalents might have been invoked to permit De Forest to practice his improvement. n234


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