A provision on this matter may be drafted in more or less broad terms, depending on the general policy adopted and on the expected implications of such exception on foreign investment, transfers of advanced technology, and local research and development.
1. The effects of the patent shall not extend to any acts done for experimental purposes relating to the subject-matter of the patented inventiona).
a) Based on article 27(b) of the European Community Patent Convention.
2. The patent shall not prevent experimental use of the invention by third parties for scientific purposes or for commercial purposes that do not unreasonably conflict with a normal exploitation of the patent and that do not unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of such third parties.
Option 1 presents an exception defined on the basis of the purpose of certain acts. In evaluating specific acts, consideration should be given to their nature and scope. Thus, generally, acts involving the experimentation on rather than with the invention would be admissible. Such acts may include limited manufacturing, to the extent necessary for experimentation, but not the sale of the obtained products.
Option 1, as drafted, clearly includes experimentation for commercial purposes. In order to avoid any doubt about this, specific wording may be added (e.g. “Such acts include those done for commercial purposes”).
Option 2 reproduces the wording of the TRIPs Agreement in order to make it clear that the exception would be subject to the conditions set out in article 30 of the Agreement.
Whatever the formulation, it is advisable that the national law explicitly provide for a well-defined experimental exception.