The experimental use exception is a common law exception to the patent-holder's exclusive right of use. It permits the use of another's patented device when such use is for philosophical inquiry, curiosity, or amusement. It has recently come under attack by many who consider it too narrow. They fear that the courts' "narrowing" of the experimental use exception will stifle research and innovation. Much of the discontent with the doctrine has been spurred by a relatively recent Federal Circuit opinion, Madey v. Duke University, which makes clear that a research university does not receive immunity under the experimental use exception when its researchers engage in research or conduct experiments using patented inventions. This ruling has created an outcry because over the years universities appear to have assumed, albeit incorrectly, that their research was protected under the doctrine and thus that their scientists need not seek permission from patent owners before using patented devices. This Article, however, asserts that the university should be liable. Given the nature of university research today and its resemblance to industry research, universities should not receive special treatment from infringement simply by virtue of their being universities. In order to make a patent holder's right to exclude others meaningful, any attempt to broaden the activities that are exempt from infringement under the doctrine must be done sparingly and only for compelling reasons.
Elizabeth A. Rowe, The Experimental Use Exception to Patent Infringement: Do Universities Deserve Special Treatment?, 57 Hastings L.J. 921 (2006), available at http://scholarship.law.ufl.edu/facultypub/91