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

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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).


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