Why is a patent granted?

Is patent really a negative right? Imagine you’ve just spent years developing a disruptive technology. You’ve invested time, resources, and money to conceptualize your idea. In return for all this grinding, the government grants you a patent for recognition. But this acknowledgment doesn’t come without conditions—it’s meant to benefit both you and the public. The trade-off? In exchange for patent rights, you must fully disclose the details of your invention, allowing other persons skilled in the art to learn from it and practice once the patent expires.

A patent is often described as a “negative right”. At first glance, this may seem odd—why call something that protects your invention a negative right? Well, it’s because a patent doesn’t give you an absolute right to make or sell your invention. Instead, it gives you the right to exclude others from making, using, selling, or importing your invention without your permission.

If patents were positive rights, allowing inventors to unreservedly make and sell their inventions without limitation, it would create significant conflicts. Each inventor’s positive right could potentially override someone else’s.

Examples

Let’s look at an example to clarify this. Suppose a pharmaceutical company develops a new drug compound and patents it. Later, a second company discovers a more efficient drug delivery method for that drug. If patents granted positive or affirmative rights, the second company could in no time sell its version of the drug without needing permission from the original drug developer. The first company would have no control over how its invention was being used, and its significant investment in research and development would pour down the drain. The system would be unfair, as the first company’s work could be exploited without their approval, basically erasing the incentives to create innovations. This overlapping of rights would create a legal mess, stifling progress rather than encouraging it.

Let’s consider another scenario. You’ve invented a new type of smartphone battery that lasts much longer. However, your battery builds on an existing patented technology. If patents were “positive rights,” you could manufacture and sell your new battery freely. However, in truth, because your invention depends on someone else’s patented technology, you can’t just start manufacturing and selling it. You need consent from the original patent holder first.

What if patent was not a negative right?

Without this “negative right” system in place, every inventor would be free to create and sell their inventions, even if they were improvements on others’ technologies. This would undermine the rights of the original inventors and lead to chaos—why bother innovating if someone else could profit off your invention without your permission? So, the negative right ensures that inventors must respect each other’s rights while fostering further innovation by building on disclosed ideas.

This is why patents remain negative rights—to ensure fair play and respect for each inventor’s contributions while allowing innovation to build responsibly on past work.