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67 J. Pat. & Trademark Off. Soc'y 617 (1985)
Experimental Use as an Exception to Patent Infringement

handle is hein.journals/jpatos67 and id is 643 raw text is: EXPERIMENTAL USE AS AN Ronald D. Hantman* EXCEPTION TO PATENT INFRINGEMENT CONTENTS I. Introduction ............................................. 617 II. The Statutory Background .............................. 618 III. The Experimental Use Exception ....................... 619 IV. Roche Products, Inc. v. Bolar Pharmaceutical C o., Inc .................................................... 620 A . U se for Profit ......................................... 622 V. Experimental Use Prior to Roche Products, Inc. v. Bolar Pharmaceutical Co., Inc .......................... 624 A. Cases Including Private Persons .................... 625 a. Cases in which the Experimental Use Defense w as A llow ed ...................................... 625 b. Cases in which the Experimental Use Defense was Disallowed ................................... 626 B. Cases Including the United States Government .... 630 a. Cases in which the Experimental Use Defense w as Allow ed ...................................... 632 b. Cases in which the Experimental Use Defense was Disallowed ................................... 634 C. Cases Which Are Not Experimental Use Cases .... 635 VI. Improvements and New Uses of Patented Technology of O thers .................................................. 638 A. The Policy of the Patent System .................... 641 V II. Sum m ary ................................................. 643 I. INTRODUCTION The experimental use defense to patent infringement has been sparingly used in the hundred and seventy-two years since its creation in 1813. It has been suggested by some commentators and judges that the experimental use defense provides a very narrow exception to patent infringe- ment.1 It has also been suggested in the only paper to discuss *Exxon Research and Engineering Company Law Department. The views expressed in this paper are those of the author and not necessarily those of Exxon Research and Engineering Company (ER&E). Appreciation is expressed to Jay Simon of ER&E for his many helpful suggestions. Copyright 1985 Ronald D. Hantman 1 See, e.g., Pfizer, Inc. v. International Rectifier Corp., 217 USPQ 157 (C.D. Cal. 1982), and Roche Products, Inc. v. Bolar Pharmaceutical Co., Inc., 221 USPQ 937 (Fed. Cir. 1984). -617-

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