A basic objective of the patent law is to promote innovation. Overly broad patent rights may harm innovation, however¹²⁰. One mechanism to address this problem is through a patent exception relating to research and experimentation, permitting use of the invention without compensation to the owner for such purposes. An experimental use exception may foster technological progress based on “inventing around” or improving a protected invention, as well as permit evaluation of an invention in order to request a license, or for other legitimate purposes, such as to test whether the patent is valid¹²¹.

¹²⁰ See, e.g., Mazzoleni and Nelson, 1998.

¹²¹ See, e.g., Eisenberg, 1989; Gilat, 1995.

While the experimentation exception is rather narrow in the United States¹²², many countries (notably in Europe) explicitly authorize experimentation on an invention without the consent of the patent owner, for scientific as well as commercial purposes¹²³.

¹²² See, e.g., Wegner, 1994, p. 267

¹²³ See, e.g., Cornish, 1998, p. 736.

An experimental use exception, including one for certain commercial purposes, seem to fall clearly within the category of admitted exceptions under Article 30 of the TRIPs Agreement. However, actual application of such an exception that leads to rival products not significantly different from the patented product may be deemed an infringement under the “doctrine of equivalents” in some countries’ national case law (see section 9 below).