A Right to Adequate Remuneration for the Experimental-Use Exception in Patent Law: Collectively Managing Our Way Through the Thickets and Stacks in Research?
1 Intellectual Property Quarterly 63-86
Posted: 16 Oct 2017
Date Written: 2016
Empirical evidence indicates that—for a variety of reasons—patents are not greatly hindering research, contrary to suggestions that the proliferation of patents would lead to a tragedy of the anti-commons. This is because the number of patents that actually have to be licensed is not usually great, and most patentees are willing to license. Furthermore, users often ignore patents or presume that their actions fall under an informal experimental use exception, or users act under the presumption that their actions will go unnoticed or are not worth policing. While these factors mean that there is more or less follow-on research, they bring to light two deeper concerns. First, users expend a great deal of resources to determine freedom to operate (wading through a myriad of patents in order to establish which patents they need to license) and to negotiate with patent owners. Secondly, patent law does not match reality, and users rely on market failures that halt patentees from enforcing their patents. In order to ameliorate these concerns (in particular, to lower transaction costs and create legal certainty when it comes to follow-on research), this article examines the possible introduction of a right to adequate remuneration tied to an expanded experimental use exception and explores what this right might look like.
Keywords: patents, collective management, experimental use, adequate remuneration
JEL Classification: K11, K39
Suggested Citation: Suggested Citation