The Experimental Use Exemption to Patent Infringement: Information on Ice, Competition on Hold

The Court of Appeals for the Federal Circuit has nearly eliminated the common law experimental use exemption to patent infringement under which patent subject matter can be used for research purposes. In doing so, the court has retarded innovation, competition and consumer welfare. This paper traces the demise of the experimental use exemption, compares the exemption to other patent law policies, reviews and critiques law reform proposals to reestablish the exemption, and proposes a new statutory experimental use exemption. The proposed statutory experimental use exemption would cover all patent subject matter, but would provide differential (asymmetric) access to patent subject matter for corporations, small businesses and non-profit research organizations. The proposed experimental use exemption includes a test to determine permitted research uses of patent subject under the exemption and statutory language to implement the exemption.