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The complex legal position of a patent granting
negative rights can be easily understood
by the provision of a simple fictional example in relation to a
three legged stool. Bob the local carpenter developed the first
three legged stool in the world as a cheap seat for his local
community. Bob often watched the Dragons Den and being aware of IP,
he contacted the local Patent Attorney who drafted and filed a
patent application for Bob. The patent was subsequently granted and
Bob made and sold his three legged stools with considerable success.
Dave the local publican bought twenty of the stools off Bob but
noticed that on occasion one of his customers would become
inebriated and fall off the back of the stool onto the ground. Dave
was concerned about his liability in the event of a customer making
a large personal injury claim and it occurred to him that a back
support extending up out of the seat of the three legged stool would
solve the problem of people falling off the back of their stools
onto the ground.
Dave decided that he had invented a new product and
contacted a Patent Attorney and asked him to prepare and file a
patent application for his stool with a back support. Dave was so
sure that his idea was new that he decided to go ahead without
carrying out the prior art search recommended by his Patent
Attorney. As the Patent Attorney was preparing the specification,
Dave decided to press on with product development and brought a
number of the old stools he had in his bar to a local carpenter.
Dave asked the carpenter to modify the stools by putting a back
support onto the stool. The carpenter made the stools and returned
them to the bar and to Dave’s delight there were no further
incidences of people falling off the back of their stools. Dave
contacted the carpenter and asked him to start manufacturing more of
the new stools as he intended to supply them to every bar in the
land.
To Dave’s surprise just a year into production, his
carpenter received a letter from Bob’s Patent Attorney informing him
of the existence of Bob’s earlier patent stating that manufacture of
the improved bar stool with the back support was an infringement of
Bob’s earlier patent describing a stool without a back support. Dave
immediately went down to his Patent Attorney's office demanding to
know what the meaning of the letter was. Unfortunately,
Dave’s Patent Attorney had to explain to Dave that the earlier
patent claimed a monopoly on a seat comprising a support surface
spaced apart from the ground by three legs projecting from the
underside of the support surface. Although Dave’s product was an
improvement on the earlier stool it still had to use the same
support surface and three legs so therefore it was infringing Bob’s
earlier patent. Fortunately for Dave, Bob had taken quite an
interest in this new stool and offered Bob the possibility of a
royalty free cross-license agreement where Dave could put his stool
with back support on the market provided Bob could use Dave’s back
support on a new range of stools he was interested in manufacturing
for a different market. Dave and Bob sliced up the market
appropriately and carried on with their own successful exploitation
of all of the patents concerned.
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