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ARTICLE · 26 MAY 2012

Differences in Trans-Tasman Patent Law: Patents and Experimental Use

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It is accepted that "experimenting" with inventions is permissible so long as it is not "commercial" in nature.

AustraliaIntellectual Property
Charles Tansey
Charles Tansey
Gareth Dixon
Gareth Dixon
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Patents legislation throughout the world generally provides that one party shall not "exploit" another's patented invention. On the other hand, it is widely accepted at common law that "experimenting" with or around such an invention is permissible so long as such experimentation is not "commercial" in nature.

The so-called Experimental Use Exception to patent infringement (EUE) is thereby a balance between at once providing strong and exclusive rights to a patentee (i.e., Art.30, TRIPs), whilst at the same time serving to stimulate innovation, research and development. Naturally, the differing social, political and economic climate of individual countries necessitates a unique "line in the sand" as to precisely where "experimentation" ends and "exploitation" begins.

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