Inventor Ivan owns a patent on a new Gizmo. He has spent a substantial portion of his time and resources to develop the Gizmo. He has also spent thousands of dollars on his patent attorneys to obtain the patent. Ivan had to wait over two years for the patent application to be processed and approved. But it was all worth it. Our patent laws grant Ivan a negative right-the right to exclude others from practicing his invention during the period of the patent. The local university is using Ivan's invention to further its own research. The university's research will allow the university to train many graduate students and could potentially result in large profits for the university. The university did not seek Ivan's permission to use the Gizmo. Should the university be liable to Ivan for patent infringement? Whether Ivan can prevail depends on whether the university can claim its unauthorized use of the Gizmo is permitted under the experimental use exception. The experimental use exception is a common law exception to the patent-holder's exclusive right of use. It permits the use of another's patented device when such use is for philosophical inquiry, curiosity, or amusement. Judging from the scholarship on this topic to date, most commentators would probably answer the question posed by the hypothetical in the negative: the university should not be liable to Ivan for patent infringement. This Article, however, rejects such an answer and asserts that the university should be liable.
Elizabeth A. Rowe,
The Experimental Use Exception to Patent Infringement: Do Universities Deserve Special Treatment?,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol59/iss2/4