Analysis of the Experimental Use Exception

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Volume 3, Issue 2 (Jun 2012)

Undoubtedly, if you are reading this article, your life has been affected dramatically by inventions. You may be reading this on the printed page, thereby owing much of your enjoyment to the printing press. You could also be reading this from the screen of a computer, an invention that has more recently had a tremendous impact on the world. If you are sitting under an artificial light, in a chair, or just about anywhere, the inventive spirit of others has had an impact on your life. In fact, almost every aspect of our lives has been altered by inventions. For that reason, the importance of inventions and the inventive spirit is hard to deny, and the value to people is easy to understand.

The significance and importance of inventions are so great that the Constitution of the United States offers protections for the interests of inventors. Essentially, it gives Congress the power to grant inventors exclusive rights to their inventions. During this time of exclusivity, the inventor can reap the appropriate commercial, reputational, or personal benefits that come from his invention. This protection is also significant, not because the inventor has rights to his invention, but because his rights are exclusive and allow him to forbid others to use, make, offer to sell, or sell the invention. This protection is the basis for today’s patent laws in the United States.

Courts have in fact found that some unlicensed uses of patented devices are not infringing. One doctrine that allows such a use to be reached is the experimental use exception. The “experimental use exception” actually describes two entirely separate legal doctrines: (1) an exception to the public use bar; and (2) a defense to unlicensed use of a patented item. The former will be discussed only briefly. The main focus of this paper is an analysis of the experimental use exception as a defense to unlicensed use of a patented item.

Gregory N. Pate, Analysis of the Experimental Use Exception, 3 N.C. J.L. & Tech. 253 (2002), available at http://ncjolt.org/wp-content/uploads/2016/09/17_3NCJLTech2532001-2002.pdf.

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