experimental use doctrine

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

http://www.acenet.edu/hena/readArticle.cfm?articleID=85
Supreme Court Requests Brief in Experimental Use Case 
ACE Higher Education and National Affairs
05/5/03 * Vol. 52, No. 8

"...For 170 years, U.S. legal doctrine has held that university
researchers could freely borrow patented technologies for limited use in
basic research for non-commercial ventures. In October 2002, the Federal
Circuit Court of Appeals nullified the "experimental use doctrine" in a
decision handed down in the case Madey vs. Duke University.

...The appeals court held that major research universities such as Duke
often sanction and fund research projects with arguably no commercial
application whatsoever. However, these projects unmistakably further the
institution's legitimate business objectives, including educating
participating students and faculty.  The Federal Circuit Court's opinion
is currently in effect and applies not only to Duke but to all research
institutions with equal force.

ACE has joined an amicus brief filed on behalf of Duke by the Association
of American Medical Colleges and 29 colleges and higher education
organizations asking the U.S. Supreme Court to overturn the federal
appeals court ruling. "

Update-
June 6, 2003 
Office of the Solictor General recommendation :

" QUESTION PRESENTED Whether petitioner is entitled to summary judgment on
respondent's claim of patent infringement under 35 U.S.C.271(a), on the
ground that petitioner's unauthorized use of respondent's patented
inventions is protected under the common law defense of experimental use."

"This brief is submitted in response to the order of this Court inviting
the Solicitor General to express the views of the United States. The
position of the United States is that the petition for certiorari should
be denied."

In the brief requested by the Supreme Court brief, Office of the Solictor
General recommended against summary judgment for Duke. For details see:

http://www.usdoj.gov/osg/briefs/2002/2pet/6invit/2002-1007.pet.ami.inv.pdf