Scientific Research and the Experimental Use Privilege in Patent Law

摘要

Congress has identified research and development (R&D) as important contributors to technological progress. The performance of R&D may have intellectual property ramifications, however. To the extent that researchers use patented inventions without authorization, they may face infringement liability. Although the courts recognize an exception to patent infringement known as the experimental use privilege, this judicially created doctrine has been described as very narrow and rarely applied. In particular, the experimental use privilege applies only to uses done for amusement, to satisfy idle curiosity or for strictly philosophical inquiry. This doctrine does not excuse uses that are in keeping with the accused infringer's business objectives. In 2002, the U.S. Court of Appeals for the Federal Circuit applied these principles in the case of Madey v. Duke University. The court held that the experimental use privilege does not apply to activities that are in keeping with the alleged infringer's legitimate business even though the business of the defendant, Duke University, was nonprofit research. This ruling has raised concerns among some representatives of universities and research institutions, who fear that their basic R&D activities will subject them to patent infringement lawsuits.