Patents and the research exemption.

摘要: I read with great interest David Malakoff's article about the ruling in Madey v. Duke University ([1][1]) “(Universities ask Supreme Court to reverse patent ruling,” News of Week, 3 Jan., p. [26][2]). Although have a deal sympathy for academic institutions that would like avoid having worry infringement, court probably delivered correct legal opinion. The research (or experimental use) exemption law has always been very narrow reserved cases which use patented invention was solely noncommercial purposes ([2][3]). U.S. statute (35 U.S.C. 1–37) does not contain exemption, judges created this line interpreting statute. Universities many years maintained they and their employees are entitled because conducted at university is noncommercial, i.e., academic, purposes. In an earlier era, claim may substantially true, but it no longer: modern serves commercial ([3][4]). university-based researchers now frequently conduct purposes, hold patents other intellectual properties, also form start-up companies from new technologies. own technology transfer offices, designed help obtain patents, encourage development useful inventions, protect property interests university. It case even most) universities still purely reasons, need evaluate every involving researcher or on its merits. Blanket assertions by “all qualifies exemption” false self-serving. How should society respond ruling? If found longer applies uniformly setting, will face two choices: (i) infringe take chance litigation (ii) negotiate licenses holders. Both these options increase administrative costs conducting involve more work attorneys offices. To reduce allow continue business as usual, could be amended develop explicit exemption. Some commentators favor strengthening precisely way ([4][5]). sounds good theory, meet stiff resistance Congress, private certainly oppose any changes current undermine create uncertain environment. Furthermore, difficult clear unambiguous definition distinguishes between research. One thing come dispute courts finally holding accountable activities. want receive benefits system, financial gain, then prepared bear burdens, potential infringement. Justice fair play demand all those who participate system rules. 1. [↵][6] Madeyv. , 307 F.3d 1351 (2002). 2. [↵][7]1. J. Mueller Wash. Law Rev. 76, 1 (2001). [OpenUrl][8][Web Science][9] 3. [↵][10]1. A. Shamoo, 2. D. Resnik Responsible Conduct Research (Oxford Univ. Press, Oxford, 2002). 4. [↵][11]1. Nuffield Council Ethics Patenting DNA (Nuffield Council, London, 2002)(available [www.nuffieldbioethics.org/patentingdna/index.asp][12]). [1]: #ref-1 [2]: /lookup/doi/10.1126/science.299.5603.26a [3]: #ref-2 [4]: #ref-3 [5]: #ref-4 [6]: #xref-ref-1-1 "View reference text" [7]: #xref-ref-2-1 2 [8]: {openurl}?query=rft.jtitle%253DWash.%2BLaw%2BRev.%26rft.volume%253D76%26rft.spage%253D1%26rft.genre%253Darticle%26rft_val_fmt%253Dinfo%253Aofi%252Ffmt%253Akev%253Amtx%253Ajournal%26ctx_ver%253DZ39.88-2004%26url_ver%253DZ39.88-2004%26url_ctx_fmt%253Dinfo%253Aofi%252Ffmt%253Akev%253Amtx%253Actx [9]: /lookup/external-ref?access_num=000167466300001&link_type=ISI [10]: #xref-ref-3-1 [11]: #xref-ref-4-1 4 [12]: http://www.nuffieldbioethics.org/patentingdna/index.asp