ABSTRACT
The experimental use exception to patent infringement liability is incredibly narrow, unless such use is in one of the few areas specifically called out as protected by the Patent Act. In Madey v. Duke University, the leading case on experimental use exception from 2002, the Federal Circuit-which hears appeals and resolves questions arising under patent laws throughout the United States-held that the experimental use exception has an extremely narrow scope and only applies to uses “for amusement, to satisfy idle curiosity or for strictly philosophical inquiry,” but not to uses that have the “slightest commercial implication” or are “in keeping with the alleged infringer’s legitimate business” [1]. The court also explained that the burden to establish the basis for the experimental use exception rests on the alleged infringer, thus further making it more difficult for the alleged infringer to establish the already narrow defense [2].
