Patents as Swords vs. Shields

Posted: July 29, 2008

It has become more pressing for chemists to understand the practical business reasons why patents are important. Patents can provide protection on the offense or defense, as Tony O'Lenick explains...

Patents are becoming more and more important to the personal care business. Today, almost every research and development project begins with an approval from the legal department, thus it has become more pressing for chemists to understand the practical business reasons why patents are important.

It has been sad that “patents are both swords and shields.” As a shield, they protect in a number of ways—foremost, by preventing others from making, using, selling or patenting someone else's invention. At first, this may seem a rather odd concept since a patent confers a negative right. As a sword, they give the owner a legal right to stop others from practicing the claimed invention.¹

Most companies use patents as shields to protect a technology they use. This is the oldest and perhaps most common use of patents. In this capacity, the patent not only shields, it also establishes Freedom to Operate. This is a legal opinion in which the technology has been deemed to not have violated the valid claims of another patent.

To use a patent as a sword, companies block competitors from using a new technology. Under this strategy, the company gets a patent but never uses the technology—the company is merely interested in keeping others from using it.