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50 U. Mich. J. L. Reform Caveat 1 (2016)

handle is hein.journals/caveat50 and id is 1 raw text is: A RESEARCH EXEMPTION FOR THE 21ST CENTURY Introduction On March 20, 2015, Robert Kastenmeier, who represented Wisconsin's Second Congressional District from 1959 to 1991, passed away at his home in Arlington, Virginia.' Though Kastenmeier may not have been well known outside of legislative circles and his home state of Wisconsin, he was in fact one of the most prolific policy makers-if not the most prolific policy maker-in the field of intellectual property law in the 20' century. He is impressively credited with authoring more than forty-eight laws dealing with intellectual property matters during his legislative tenure, including the Copyright Act of 1976, which remains the primary legal framework for copyright law in the United States.2 One of the last bills that Kastenmeier introduced in the House of Representatives was a major piece of patent reform legislation dubbed the Patent Competitiveness and Technological Innovation Act of 1990 (PCTIA).3 Kastenmeier introduced the bill on September 20, 1990, but left office less than four months later on January 3, 1991, after losing an election to Scott Klug. The PCTIA contained five separate titles, and dealt with subjects as varied as the patentability of inventions made in outer space to the repeal of state sovereign immunity from infringement liability.4 One of those titles, Title IV, garnered little attention at the time, but addressed a subject of tremendous importance today: the need to codify and strengthen the long-standing common law research exemption in American patent law. I have written elsewhere about the political economy of the research exemption in American patent law from 1970 to the present day, with an emphasis on analyzing the political coalitions that have historically argued in favor of or against such exemptions, and the economic arguments they often invoke.5 The purpose of this article, in contrast, is to carry forward the torch that Kastenmeier lit, and argue in favor of codifying a robust research exemption. To that end, section two briefly 1. Adam Clymer, Robert Kastenmeier, Liberal Voice in House for 32 Years, Dies at 91, THE NEW YORK TIMES (Mar. 20, 2015), http://www.nytimes.com/2015/03/21/us/robert-kastenmeier- liberal-house-voice-dies-at-91.html. 2. Id. 3. H.R. 5598, 101st Cong. (1990). 4. Id. 5. See generally Nicholas Short, The Political Economy of the Research Exemption in American Patent Law, 26 FORDHAM INTELL. PROP., MEDIA & ENT. L. J. 573 (2016). 1

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