Experimental Use Defense to Patent Infringement: Scope, Limitations, and Implementation by Common Law vs. Statute

Recording of a 90-minute premium CLE video webinar with Q&A


Conducted on Tuesday, November 24, 2020

Recorded event now available

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Program Materials

This CLE webinar will guide patent counsel on using the experimental use defense. The panel will discuss where the defense stands under U.S. law as well as how other countries treat the defense. The panel will examine when it is permissible to use prior inventions to build new ones and when it crosses the line to infringement. They will also discuss the proposals to implement the defense and the impact of a recent Supreme Court decision.

Description

The pandemic has prompted significant global research efforts to find treatments and a vaccine. Much of this research is building off technologies initially pursued to treat other diseases. This raises several legal issues, including when it is permissible to use prior inventions to create new ones and when it is infringement.

The experimental use defense is a research exemption to patent infringement. However, its scope and limitations have evolved. In areas other than pharmaceutical testing for regulatory purposes, it appears that the common law experimental use exemption remains narrow.

Patent counsel must understand when research may use prior inventions to create something new and the scope and limitations of the experimental use defense.

Listen as our authoritative panel of patent attorneys examines the experimental use defense and discusses the defense under U.S. common and statutory law. They will address how other countries treat the defense and when it is permissible to use prior inventions to build new ones and when that crosses the line to infringement. The panel will also discuss the proposals to implement the defense and the impact a recent Supreme Court decision had on the need to do so under the AIA.

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Outline

  1. Experimental use defense
    1. U.S. common law vs. statutory law
    2. Outside the U.S.
  2. Court treatment
  3. Proposals to implement the defense
  4. Best practices

Benefits

The panel will review these and other key issues:

  • What effect do existing patents have on the latest research?
  • To what extent can researchers use a patented invention on which to build for research absent the patent owner's permission?
  • Where is the line of delineation between fair use and infringement to make improvements on patented inventions?

Faculty

Noonan, Kevin
Kevin E. Noonan, Ph.D.

Partner
McDonnell Boehnen Hulbert & Berghoff

Dr. Noonan's practice involves all aspects of patent prosecution, interferences, and litigation. He represents...  |  Read More

Torrance , Andrew
Dr. Andrew Torrance

Senior Director, Intellectual Property
Broad Institute of MIT and Harvard

Dr. Torrance is leading the intellectual property department at the Eli and Edythe Broad Institute of MIT and Harvard,...  |  Read More

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