Designing the proper function, form and scope of the experimental use mechanism under patent law

Abstract

How should the experimental use mechanism be designed in order to maintain the proper balance between the rights of patent holders and the rights retained by the public? The work explores various approaches towards the experimental use exemption in influential regions, such as US UK Germany Japan as well as in international treaties. In each of these systems some degree of vulnerability is found. Either exemption is too narrow or too broad and lacking a dynamic dimension. Therefore, the work sets out to design a dynamic and multi-step experimental use mechanism. The work proposes to view the experimental use mechanism as a right provided to the public and in turn as a duty imposed on the patent holder to suggest path/s of exploration with regard to the patented invention. This approach significantly strengthens the experimental use mechanism as it becomes part of the bundle of requirements that an inventor needs to comply with in order to obtain a patent grant. The scope of the experimental use mechanism will be determined by a three step process. In the first stage the positions and interests of the inventor, invention and researcher will be taken into account in order to determine the incentives needed to cause inventors to stay within the patent system and at the same time prevent researches from migrating to other regions. In the second stage the scope of the experimental use mechanism will be impacted by the determination whether either party adopted anticompetitive behavior. The final step will inquire whether the invention or the research is geared at improving public health. In these instances there will be a tendency to increase the scope of the experimental use mechanism due to the internationally recognized right to health and its global importance. The work incorporates concepts from different legal fields such as competition law and health policy as well as from other disciplines including economics and psychology The three step process has the potential of designing a dynamic and robust experimental use mechanism which may prove to be useful in other patent settings such as the holdup problem or blocking patents. Incorporating a flexible experimental use mechanism may diminish the attempts of patent holders to act opportunistically and curtail the rights of the public. Thus, the work contributes to the current state of the experimental use debate and towards achieving the proper balance between the rights of the patent holder and the rights of the public.