About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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-

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most