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What you can and can't learn about patents from TV shows: Part 2

Following on from the success of our previous blog post (Part 1), welcome to Part 2, where we’ll be delving into season 3, episode 13 of Suits, to understand what you can, and again, more importantly, what you can’t, learn about the patent world from TV shows.   

The storyline 

In this episode, Harvey goes up against an old enemy from his youth, Elliot Stemple (fellow experienced lawyer). In this particular case Harvey represents a microprocessor company, whilst Elliot represents a computer company, and Elliot tricks Harvey into proving that the processors both companies use have virtually identical performances. 

In turn, Elliot files a patent infringement suit against Harvey’s client, asserting that to produce the identical performance, Harvey’s client must have stolen the technology from Elliot’s client, and that the stolen technology infringes their patent.  

Thankfully, Mike comes to the rescue, finding proof that Elliot never really believed they had a valid patent infringement suit, but was using the suit to get his hands on Harvey’s client’s processor so that he could figure out how it was made to help improve his client’s product.  

Learning points  

1. Patents are a negative right

Something that often comes as a surprise to those new to patents is that they are a negative right, i.e., they do not necessarily enable the owner to put their invention into practice, but instead enable the owner to prevent other people from putting the invention into practice.   

For example, if you owned a patent for a wheelbarrow, you would not be able to make or sell said wheelbarrow if somebody else owned a patent for a wheel, because you could not use their wheel without their consent, since doing so would infringe their patent. However, you could prevent others from making or selling your wheelbarrow, including the owner of the wheel patent.  

Hence, in this example, assuming Elliot’s client does have a patent covering their technology, if Harvey’s client stole the technology, and was making or selling said technology, then doing so without the patent owner’s consent would infringe the patent.  

However, if Harvey’s client had a patent for their technology, even if Elliot’s client did get their hands on said technology, they would not be able to commercialise that technology without infringing Harvey’s client’s patent.  

2. Wrongful threatening of infringement proceedings  

UK patent law provides a means by which patent rights may be enforced against infringing acts. However, as in this episode, theoretically this could be misused by patent owners to suppress competition. This may seem particularly daunting to small business owners who have done all that they can to avoid infringing a patent right, only for a bigger, richer company to come along and sue them for patent infringement regardless of whether there was any legal basis for doing so, knowing that the mere threat of infringement proceedings will cause damage to a business. 

However to prevent such situations, UK patent law has “groundless threats” provisions, which prevent patent owners from making indiscriminate threats of infringement proceedings against others, e.g., if a threat to sue for infringement is made where there has been no infringement, or if the patent upon which the threat is based is invalid.

Hence, although Elliot’s client could threaten patent infringement, they would likely decide against it, knowing that Harvey’s client could actually bring legal action against them based on groundless threats provisions, and they could become liable for damages.  

That is not to say that patents cannot be enforced without fear of being countersued for groundless threat. Quite the opposite, UK patent law lays out specific rules around how to go about enforcing a patent and is careful in striking an appropriate balance between enabling rights holders to enforce their patents, whilst preventing attempts to misuse threats to distort competition or stifle innovation. 

Look out for the next instalment of this series, where we will be looking into patents as property, and patenting software inventions, as discussed in US TV show Silicon Valley. In the meantime, please click here for more on how our patent attorneys could help your business.

Author: Cory Stobart

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