Computer Law Review and Technology Journal
Abstract
The common law experimental use exception has existed since the early I800s as a defense to patent infringement where the use of the patented invention by the alleged infringer is for the mere purpose of intellectual curiosity, amusement or philosophical experimentation with no underlying business or commercial motive, or to confirm that an invention works the way it is disclosed in the patent specification. In the last six years, the U.S. Court of Appeals for the Federal Circuit has further defined and narrowed the scope of the exception by making not for profit institutions liable for patent infringement when using patented products for experimental purposes. Over the last thirty years there has also been a proliferation of computer software patents due to an expansion of what constitutes patentable subject matter. Due to the insufficiency of the disclosure requirements for certain computer software patents, there is a heavy reliance by software engineers to reverse engineer and design around patented computer programs. The narrowed experimental use exception results in an increased risk of patent infringement from reverse engineering and design around types of activities, which may ultimately threaten the pace of software development in the United States. The narrow exception may act as an incentive for the movement of computer software development to foreign countries with broader research exceptions than the U.S. and result in the loss of not only our leadership position, but also high skill technical jobs. The author sets forth three alternative types of legislative change to broaden the scope of the experimental use exception to help maintain technological progress and preserve our nation's leadership in computer software technology.
Recommended Citation
Robert A. Migliorini,
The Narrowed Experimental Use Exception to Patent Infringement and its Application to Patented Computer Software,
10
Computer L. Rev. & Tech. J.
135
(2006)
