The freedom to tinker: Patent law and experimental use

Rimmer, Matthew (2005) The freedom to tinker: Patent law and experimental use. Expert Opinion on Therapeutic Patents, 15(2), pp. 167-200.

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Abstract

This article considers the origins and the development of the defence of experimental use in patent law - the ’freedom to tinker'. It explores the impact of such an exemption upon a number of important industries - such as agriculture, biotechnology, and pharmaceutical drugs. This article takes a comparative approach in its analysis of patent law and experimental use. It highlights the competing norms, and lack of harmonization between a number of jurisdictions - including the United States, the European Union, and Australia. Section 2 provides a critique of the development of the common law defence of experimental use in the United States. It considers a series of precedents - including Roche Products Inc v Bolar Pharmaceuticals, Madey v Duke University, Integra Lifesciences I Ltd v Merck KgaA, and Applera v MJ Research. Section 3 explores the operation of patent law and experimental use in European jurisdictions. It looks at a number of significant precedents in the United Kingdom, the Netherlands, France, Italy, and Germany. Section 4 considers the policy debate in a number of forums over the defence of experimental use in Australia. It examines the controversy over Genetic Technologies Limited asking research organisations to obtain a licence in respect of its patents associated with non-coding DNA and genomic mapping. It also considers the inquiries of the Australian Law Reform Commission and the Advisory Council on Intellectual Property, as well as the impact of the TRIPS Agreement and the Australia-United States Free Trade Agreement. The conclusion contends that there is a need for a broad-based defence of experimental use for all the member states of the Organisation for Economic Co-operation and Development.

Impact and interest:

7 citations in Scopus
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4 citations in Web of Science®

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ID Code: 85412
Item Type: Journal Article
Refereed: Yes
Keywords: Agriculture, biotechnology, Bona Fide Research, Experimental Purposes, Experimental Use, patent law, Pharmaceutical Drugs, Philosophical Inquiry, Public Research, research exemption, Intellectual Property and Innovation Law Research Group
DOI: 10.1517/13543776.15.2.167
ISSN: 1744-7674
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Deposited On: 19 Aug 2015 02:57
Last Modified: 07 Sep 2015 01:27

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