The patent is issued in the name of the United States under the seal of
the Patent and Trademark Office, and is either signed by the
Commissioner of Patents and Trademarks or has his name written thereon
and attested by an Office official. The patent contains a grant to the
patentee, and a printed copy of the specification and drawing is annexed
to the patent and forms a part of it. The grant confers “the right to
exclude others from making, using, offering for sale or selling the
invention throughout the United States or importing the invention into
the United States” and its territories and possessions for which the
term of the patent shall be 20 years from the date on which the
application for the patent was filed in the United States or, if the
application contains a specific reference to an earlier filed
application under 35 U.S.C. 120, 121 or 365(c), from the date of the
earliest such application was filed, and subject to the payment of
maintenance fees as provided by law.
The exact nature of the right conferred must be carefully distinguished,
and the key is in the words “right to exclude” in the phrase just
quoted. The patent does not grant the right to make, use, offer for sale
or sell or import the invention but only grants the exclusive nature of
the right. Any person is ordinarily free to make, use, offer for sale or
sell or import anything he/she pleases, and a grant from the Government
is not necessary. The patent only grants the right to exclude others
from making, using, offering for sale or selling or importing the
invention. Since the patent does not grant the right to make, use, offer
for sale, or sell, or import the invention, the patentee’s own right to
do so is dependent upon the rights of others and whatever general laws
might be applicable. A patentee, merely because he/she has received a
patent for an invention, is not thereby authorized to make, use, offer
for sale, or sell, or import the invention if doing so would violate any
law. An inventor of a new automobile who has obtained a patent thereon
would not be entitled to use the patented automobile in violation of the
laws of a State requiring a license, nor may a patentee sell an article,
the sale of which may be forbidden by a law, merely because a patent has
been obtained.
Neither may a patentee make, use, offer for sale, or sell, or import
his/her own invention if doing so would infringe the prior rights of
others. A patentee may not violate the Federal antitrust laws, such as
by resale price agreements or entering into combination in restraints of
trade, or the pure food and drug laws, by virtue of having a patent.
Ordinarily there is nothing which prohibits a patentee from making,
using, offering for sale, or selling, or importing his/her own
invention, unless he/she thereby infringes another’s patent which is
still in force.
The term of the patent shall be 20 years from the date on which the
application for the patent was filed in the United States or, if the
application contains a specific reference to an earlier filed
application under 35 U.S.C. 120, 121 or 365(c), from the date of the
earliest such application was filed, and subject to the payment of
maintenance fees as provided by law. A maintenance fee is due 3½, 7½ and
11½ years after the original grant for all patents issuing from the
applications filed on and after December 12, 1980. The maintenance fee
must be paid at the stipulated times to maintain the patent in force.
After the patent has expired anyone may make, use, offer for sale or
sell or import the invention without permission of the patentee,
provided that matter covered by other unexpired patents is not used. The
terms may be extended for certain Pharmaceuticals and for certain
circumstances as provided by law.