Academic research on patented items

Whilst in environmental thinking mode it is also worth noting that a rather oblique patent case, Merck v. Integra, came before the US Supreme Court this week which could have serious implications for the future of certain academic research. The EFF are pursuing it:

"Patent Threats Hurt Scientific Research

EFF Asks Court to Protect Academic and Competitive Studies

Washington, DC - Three consumer advocacy groups including the Electronic Frontier Foundation (EFF) asked the Supreme Court today to protect scientific researchers from patent-based legal threats. The case, Merck v. Integra, deals specifically with information researchers submitted to the Food and Drug Administration regarding a potential cure for cancer. But it raises broader questions about whether patent owners can stop academic researchers and inventors from studying patented inventions in order to research or improve upon them.

In their friend-of-the-court brief, EFF, Public Knowledge, and the Consumer Project on Technology argued that patent law allows researchers the freedom to make and use patented products for the purpose of furthering academic study. They also argued that experimentation on patented items for the purpose of creating new inventions is also allowed -- as long the patented products aren't sold by the researchers.

"Patent law was created to help spread knowledge and spur innovation," said Jason Schultz, staff attorney at EFF. "Allowing patent owners to shut down important scientific research flies in the face of that purpose."

"The Court has the opportunity here to do tremendous good for society, by making clear that scientists have always been and remain free to perform research -- and competitors to innovate -- without being subject to the threat of patent infringement litigation or the tax of patent licenses," noted Joshua Sarnoff of American University's Glushko–Samuelson Intellectual Property Law Clinic, counsel of record on the brief.

The Supreme Court will hear arguments on the case this spring, likely in April, and issue a decision by mid-summer.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org"

The "Summary of Argument" on pages 2 and 3 of the amicus brief (15 and 16 of the pdf) is well worth reading.

"Congress never intended for the exclusive patent rights of "making" and "using" to apply to scientific research with or competitive evaluation of patented inventions. Such activities do notdeprive patentees of any commercial rewards to which they are entitled. Commercial competitors thus have been free to make and use patented inventions to develop improvements, but not to sell or use patented inventions commercially during the patents'terms...

Long standing legislative policy supports protecting such scientific research and competitive evaluation...

The ability to experiment free from the threat of patent infringement or from the tax of patent licences is critical to scientists and to competitors seeking to develop non-infringing or blocking improvements. A broad experimental use exception is therefore essential to furthering scientific knowledge and technological development to the benefit of humanity."

I haven't given much thought to how this kind of case would play out on this side of the Atlantic but it would certainly be an interesting thought experiment to explore.