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Does the Experimental Use Exception in Patent Law Have a Future? - IP Blog

The experimental use exception, part of U.S. patent law for nearly two centuries, is becoming obsolete. Recent court decisions and changes under the America Invents Act (AIA)1 have raised doubts about the continued viability of the doctrine. Additionally, other legal provisions that offer protections similar to those of the experimental use doctrine and reduce the need for its use have gained prominence. This article explores the development and current state of the experimental use exception and its place in patent law.2

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1 Pub. L. No. 112-29, 125 Stat. 284 (codified at 35 USC §§ 100 et seq.).

2 This article focuses on U.S. patent law; it does not explore the experimental use exception in foreign jurisdictions.

Article originally appeared in the January 2018 issue of The Colorado Lawyer on 1/2/18.

Tags: Patent
  • Daniel A. Salgado

    Daniel Salgado is an associate in the firm's Intellectual Property Practice Group. Daniel’s practice focuses on patent drafting and prosecution, IP litigation, trademark opposition/cancellation proceedings, and IP clearance opinions. His patent experience includes drafting and ...

  • Kris J. Kostolansky

    Kris Kostolansky counsels businesses, and represents their interests in court in intellectual property, commercial contract, business tort, ‎and employment law disputes. He works with companies to implement best business practices to ‎avoid litigation and streamline business ...

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