9/3/2011
by: Joseph Page
Topic Views: 1585

Patent Fair Use

Is there a 'Fair Use' for patents?

Patent Fair Use

     This is a very interesting question indeed. Like so many parts of our legal system, there are two lines of reason supporting opposing conclusions for this question. By the written law (statute) the answer seems clear – there is no exception. By case law (precedent), we see at least some support in the courts for an exception to patent infringement based upon experimental use. This isn't a 50-50 proposition. I think the side of 'no fair use exception in patent cases' has a distinct advantage. Of course, one can never be certain what results a jury will finally produce in any particular case. Good luck.
     In effect, the code reads: "Whoever makes, uses or sells a patented invention, therefor infringes the patent". Rarely do we have it so clear, simple and brief. But there it is. The code does not mention any exception for experimentation or otherwise with regard to patent infringement. One infringes a patent even when non-commercial use is privately executed in a dark laboratory without observers. One cannot use a patented invention – without infringing.
     But the full story is not found in the patent statute, rather one must also consider the cases on point which have been decided by the courts. Because the patent system depends upon those later coming inventors who arrive to improve patented ideas, there must be some allowance for those new inventors to experiment with the art. At least that is how the theory begins. One might consider a useful writing on point from the Journal of Law and Technology to learn more details of this type of patent infringement defense.
     This is a complicated approach to patent infringement defense. You will need to have a very serious discussion with your patent attorney before relying upon this to protect you from patnet infringement actions. Please advanced legal help if you wish to learn more about 'patent fair use'.

Copyright IIP 2011
Comments on the patent topic: Patent Fair Use
Of course, we often see this 'fair use' notion with copyrights but I don't recognise many patent cases where such thing might exist.
PatentExpert
10/7/2011 10:05:01 AM
If you like this article, please give us a social bump!
Patent Services Header Intellectual Property Patent Agent, patent attorney, patent law Patent Topic: "Patent Fair Use" Patent Attorney Invention HOME IP Tip: #8
While it has long been the case that algorithms per se are not patentable, computer software is not under the same restriction.  Computer software and in particular computer software related to business methods have been under some serious judicial review of late.  The final result from the United States Supreme Court: computer software is largely patentable in re Bilski.  Further, European national courts seem to be taking the same position more each day as might be illustrated by the high German court ruling which upheld a major Microsoft patent recently. Patent Attorney, Patent law Software Patents - Bilski
Patent Attorney, patent agent, patent law, inventions
Home | Law Firm Contact | About Firm | Legal | SiteMap | Jobs | Patent Topic Index
.