Integrating Public Health Concerns into Patent Legislation in Developing Countries
(2000; 140 pages) [French] [Spanish] View the PDF document
Table of Contents
View the documentTHE SOUTH CENTRE
View the documentFOREWORD
View the documentGLOSSARY*
Open this folder and view contentsI. INTRODUCTION
Open this folder and view contentsII. PATENTABLE SUBJECT MATTER
Open this folder and view contentsIII. SCOPE OF CLAIMS
Open this folder and view contentsIV. PATENTABILITY REQUIREMENTS
Open this folder and view contentsV. SPECIAL CASES IN PHARMACEUTICALS
Open this folder and view contentsVI. DISCLOSURE
Close this folderVII.1 Experimental Use
View the documentVII.1.1 Options - Experimental Use
Open this folder and view contentsVII.2 Early Working
Open this folder and view contentsVII.3 Parallel Imports
Open this folder and view contentsVII.4 Individual Prescriptions
Open this folder and view contentsIX. CLAIMS INTERPRETATION
Open this folder and view contentsX. COMPULSORY LICENSING
View the documentXI. FINAL REMARKS
View the documentREFERENCES
View the documentBACK COVER

VII.1 Experimental Use

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).

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