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59 Me. L. Rev. xi (2007)

handle is hein.journals/maine59 and id is 263 raw text is: FOREWORD
Christine D. Galbraith*
On September 29, 2006, the University of Maine School of Law and the Maine
Law Review, hosted a conference entitled Closing in on Open Science: Trends in
Intellectual Property & Scientific Research. The event brought together academics,
practitioners, scientists, and students to evaluate the current structure of intellectual
property laws and its impact on innovation. The articles published in this Symposium
represent a wide variety of viewpoints and diverse approaches to the issues implicated
by the intersection of patent policy with scientific research.
The first two articles examine the experimental use exception from quite different
perspectives. In Adoption of the Bayh-Dole Act in Developed Countries: Added
Pressure for a Broad Research Exemption in the United States?, Michael Mireles
begins with a review of the Bayh-Dole Act which altered prior policy by allowing
recipients of federal funding to obtain title to any patentable inventions that resulted
from such research. In the more than twenty-five years since passage of Bayh-Dole,
there has been a proliferation of patenting and licensing by universities, although as
Mireles points out it is far from clear whether Bayh-Dole is primarily responsible for
this remarkable increase. Nonetheless, in a purported attempt to attain similar growth
in patenting, licensing, and related activity, a large number of developed countries
have recently adopted or are considering legislation similar to Bayh-Dole. However,
as Mireles explains, the historical, practical, and structural differences between
university systems in these countries and the United States makes such results even
more uncertain. Nevertheless, Mireles cautions that if this legislation has the desired
effect in these countries, it could actually have considerable negative consequences in
the United States.
According to Mireles, the most frequently raised criticism of the Bayh-Dole Act
is that it is contributing to the development of a tragedy of the anticommons. Mireles
posits that increased patenting and licensing by developed countries could lead to
amplification of this problem. This is due to the fact that while countries outside of
the United States have robust experimental use exemptions which generally insulate
them from an anticommons, the United States has only a very limited common law
research exemption. Mireles therefore contends that this dichotomy will result in
significant pressure on the United States to enact or develop a more expansive research
exception similar to that of most European countries and Japan.
In The Experimental Use Exception to Patent Infringement: Do Universities
Deserve Special Treatment?, Elizabeth A. Rowe examines the Federal Circuit's
decision in Madey v. Duke University,' which held that universities can be found liable
for patent infringement when they engage in research or conduct experiments which
utilize patented inventions. Although this decision has generally been viewed by
academic commentators as a considerable narrowing of the experimental use
* Associate Professor of Law, University of Maine School of Law. Many thanks to the participants
in the conference and contributors to this Symposium issue. Additionally, thank you to the various members
of the Maine Law Review who worked so diligently on this issue, as well as the numerous individuals who
were instrumental in the organization and success of this conference.
1. 307 F.3d 1351 (Fed. Cir. 2002).

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