The 'Experimental Use' Exception through a Developmental Lens
43 Pages Posted: 13 Feb 2013
Date Written: 2010
Experimentation and research are necessary precursors to most scientific breakthroughs that we know of today. Little wonder then that many countries provide for what is commonly referred to as an “experimental use” exception use in their patent regimes, an exception that shields experimental activities from charges of patent infringement. The underlying rationale of such an exception appears to be that experimentation on a patented invention is necessary to test the invention and ensure that it works in the manner claimed — i.e., to validate the “disclosure” function of patents and provide credence to the “bargain” or the “social contract” theory.
Some countries have gone further and permitted their exception to even cover the testing of patented inventions with a view to creating improvements or inventing around such patents. This Article argues that this latter rationale is particularly appealing in the context of developing countries that are often net importers of patented technology caught in the game of technological catch up. To that extent, this Article attempts to offer a “developmental” perspective on the experimental use exception. This perspective is offered through the specific lens of India, a developing country that articulated a statutory exception in its patent regime as far back as 1970. A plain reading of the Indian section vests it with a latitude not found in most other regimes. The Indian provision may therefore serve as a model for other developing countries that wish to boost their innovative potential.
A wide experimental use provision is particularly appealing to “technologically proficient” developing countries such as India, China, and Brazil that are yet to witness significant levels of innovation. Since such countries are gaining proficiency as low cost hubs of outsourced research and development (“R&D”) by multinational technology majors, we argue that a wide research exemption ought to be leveraged to attract even greater levels of outsourced research to such countries. However, in order to effectively leverage the exception, developing countries must ensure that there is a complete and enabling disclosure of the patented invention.
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