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

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

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 the 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.

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