The Research Exemption in Patent Law and its Application to hESC Research

Abstract

T he scope of the experimental use exemption is one of the most important and hotly contested issues in patent law today, which aims to create incentivcs for cechnological progress and future innovation by rewarding inventors with (limiced) exd usive righrs. A contenrious issue is the risk of patents stifling further innovation, such as improvcments to patented inventions, and thus depriving sociecy of such benefits. This risk is managed by statutory !imitations on the exclusivc right for the benefit of third parties to use the invention without the patent holder's consent. A main argument for !imitations is that uses of the invention as a source of further research and dcvelopment (R&D) should not be subject to the will of thc patent holder, as in those cases the interest of the public in the progress of science and technology should override the interests of the patentee. This theory is supporced by the so-called experimental use exemption, which exempts from patent infringements 'acts done for experimental purposes relating to the subject matter of the inventio.