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Assume a patent owner disallows use of some patented technology by some company. Or business conditions of usage setted by the owner are unbearable for the company. Also the patented technology is not a secret. If it's possible to selectevly disallow the usage then it's obvious that such actions breaks free competition and antitrust law. How a company can act if a patent owner creates monopoly? Can a court judge enforce patent owner to allow the usage?

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  • Can you clarify what countries you are asking about. Patents are enforced country by country and those laws may differ.
    – Eric S
    Mar 22 at 15:31
  • @EricS, conversely the answerer can answer for multiple nations via categorizing commonplace behaviors either across all nations, or across all WIPO signatory nations, or decomposed per category of legal system (e.g., whether non-practice is legal or illegal in that jurisdiction). Mar 22 at 17:04
  • @AndreasZUERCHER I encourage you to post an answer for ex-US countries that would compliment George White’s answer.
    – Eric S
    Mar 22 at 19:28

2 Answers 2

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The only right a patent gives is the right to exclude others. That is the whole point. The courts have modified it to the right to try to exclude others. Due to a case called “EBay”, in some cases the courts will not stop an infringer but just require a royalty to be paid.

EBay Inc. v._MercExchange, L.L.C.

A patent, by design, is a monopoly. Patents are not given for results but ways of obtaining a result so there are often alternative ways to accomplish a goal without infringing a patent.

So far, this is a US answer. In some counties there are “working” requirements. If the patent owner is not practicing the patent or licensing the patent, a court might issue a compulsory license to a third party who can practice the patent and pay the owner a royalty. These countries are typically not the top industrialized counties.

In those countries it is not typically "illegal" for a patent to not be worked or licensed. It is not criminal behavior or subject to fines, it's just that a governmental body can override the patent owner's normal rights and cause a compulsory license to be granted with a reasonable compensation to the patent holder. There is usually a time period after the patent is issued.

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The monopoly that a patent-grant provides allows the patent owner to dictate any overt terms that he, she, or the assigned company desires as long as the dictates are otherwise legal and to which the licensee also agrees to abide by (i.e., not breach) the terms in the licensing contract between the licensor/patent-owner and the licensee.

Examples:

  • The patent owner could not demand (neither during negotiation to utilize the patent nor during lawsuit regarding infringement) any act that would be a crime or effectively prohibited by civil law.
  • In most modern jurisdictions, the patent owner could not stipulate or demand that the innovation never be utilized by a member of a particular race.
  • In nearly all jurisdictions, the patent owner could not demand that the innovation be utilized to murder someone on the patent owner's behalf.
  • Under this restriction against compelling the licensee to commit acts in violation of criminal law or to commit acts that imperil the licensee under civil-law obligations, the patent owner to whom the patent has been granted (or assignee thereof) dare not enter into abusive negotiations that meet the definition of extortion or racketeering; all negotiations for potentially licensing the patent and all litigation regarding infringement must be done through proper channels and under a proper set of behaviors to not evoke an extortion or racketeering judgment against the patent owner.

In summary, the monopoly granted to a patent owner is somewhat limited both

  1. in time (e.g., nominally 20 years from patent application nowadays in most jurisdictions) and
  2. in scope regarding obedient legality throughout all the other statutes and/or constitution of that jurisdiction.

In case #2 of the patent owner comporting themselves in compliance with the larger fabric of law, that is where such matters in some jurisdictions/nations of non-practice of the patent would be illegal as denying all people and/or companies in that jurisdiction all utilization of a beneficial-to-humankind innovation as a mechanism of starvation of a sort, as effectively a human-rights issue.

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  • @GeorgeWhite, my answer clearly says the 1st part. My answer (as yours does too) clearly says that there exist 2 categories of jurisdictions worldwide: those that allow nonpracticing patents (e.g., to intentionally withhold an innovation from that jurisdiction for, say, 20 years; temporarily not practice while finding funding) and those that prohibit nonpracticing patents over an extended duration of time. Mar 22 at 17:12
  • @GeorgeWhite, regarding the murder/criminal-law violation, I am giving obvious examples for pedagogical reasons to teach the subject matter. This is not a ranking of most-popular outcomes or most-likely topics that came to the questioner's mind. Crystal-clear examples are how pedagogy works best. Conversely, teaching via nuanced shades of grey leads to misunderstanding, either misunderstanding by the questioner or misunderstanding by a different downstream reader a decade from now. Mar 22 at 17:15
  • I do not see the issues of limitations on licensing terms to be patent specific or even particularity patent related. I will sell you my car only if you promise to use it to run over my enemy and not to resell it to a woman. The illegality of that type of restriction has nothing to do with patent law and makes for a confusing answer.
    – George White
    Mar 22 at 17:43
  • @GeorgeWhite, I explained such matters as the ties to contract law and nonpracticing patents being a human-rights issue (e.g., patenting something is say Israel, then not practicing it in Israel so as to overtly to deny Jews that are living there the innovation for ~20 years); you did not. Our respective answers cover different territory via different pedagogical techniques to teach. In your insider-centric answer, the reader almost needs to know already what your answer means to know what your answer means at all. Mar 22 at 22:25
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    My answer includes that, in the U.S., it is not illegal to forbid anyone and everyone from practicing your patent and that forbidding others from practicing your patent is the essence of the rights one has as a patent owner. I do not think that is hard for the OP and others to understand. I do thank you for emphasizing working requirements in other locations and have improved my answer to include a little information about it. And I'm deleting one of my earlier comments since I see that Israel and several EU countries do have working requirements.
    – George White
    Mar 22 at 22:50

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