The USPTO's "Experimental Use Exception Request For Comments"

The USPTO released "Experimental Use Exception Request for Comments" in the Federal Register on Friday June 28, 2024. 89 Fed. Reg. 53,963 (June 28, 2024).

Alleged infringers may argue in certain circumstances that activity is "experimental use" and therefore not infringing. The Federal Circuit, however, has narrowly construed the experimental defense to patent infringement. In Madey v. Duke University, the Federal Circuit concluded that ''regardless of whether a particular institution or entity is engaged in an endeavor for commercial gain, so long as the act is in furtherance of the alleged infringer's legitimate business and is not solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry, the act does not qualify for the very narrow and strictly limited experimental use defense.'' 307 F.3d 1361, 1352 (Fed.Cir. 2002). Similarly, in Roche Prod. V. Bolar Pharm. Co., 733 F.2d 858 (Fed. Cir. 1984), the Federal Circuit found the