By Dennis Crouch
Cornell professors Eduardo Penalver and Oskar Liivak have an interesting new essay on the absence of any use requirement in patent law. In the 1908 case of Continental Paper Bag Co. v. Eastern Paper Bag Co., the Supreme Court held that patent owners have no duty to actually practice their patent. In that case, the court tied their analysis to real property where it recognized "the privilege of any owner of property to use or not use it, without question of motive." In their essay, Penalver and Liivak challenge this notion of real property and, in turn, challenge its use as a metaphor for patent rights. They write:
[T]he law significantly hems in the rights of owners not to use their property, employing numerous doctrines, such as nuisance, abandonment, adverse possession, and permissive waste, to ensure that owners' decision not to use their property does not inflict harm on others. Even with respect to attentive nonuse, owners' rights are qualified, both by common law doctrines like necessity and by the state's power to override (or at least influence) owners' decisions about nonuse through eminent domain, regulation and taxation.
The essay also challenges the property/patent metaphor as inapt because of the "nonrivalrous nature" of information and "because of the particularly powerful way that patent law constrains the freedom of nonowners."
Edwardo Penalver and Liivak, Oskar, The Right Not to Use in Patent and Property Law (October 16, 2012). Available at SSRN: http://ssrn.com/abstract=2162667