Standing to Assert a U.S. Patent: Do Infringement Actions Belong Solely to the 'Patentee'?

35 U.S.C. ' 281 provides that “a patentee shall have remedy by civil action for infringement of his patent.” (emphasis added) This section of the Patent Code provides the statutory basis for standing to sue in a patent case. It may be a source of some surprise, then, to consider how often in practice substantial questions arise regarding the putative patent plaintiff's threshold right to assert the patent at all, or how important it is (for both plaintiff and defendant) to determine at the outset of a possible patent infringement proceeding whether the plaintiff actually has adequate ownership interests in the patent he is purporting to assert.

How could anyone have the effrontery to attempt asserting a patent for which he was not the patentee? In most cases in which the “standing to sue” issue is raised, the problem is not that the putative plaintiff truly has no relation at all to the patent in suit, or that he has brashly filed a complaint based on the patent of a stranger. Rather, more commonly, the plaintiff has ' or believes he has ' some relation to or interest in the patent in suit, but his interest is not sufficient, or perfected, enough to satisfy the somewhat stringent statute- and case-based requirements that “the patentee” (or someone very like the patentee) is the only person entitled to complain of infringement of the patent's claims.