AIPLA Comments to USPTO on Statutory Experimental Use Exceptions

Arlington, VA. September 26, 2024 - The American Intellectual Property Law Association (AIPLA) submitted comments to the USPTO in response their request for comments on the current state of the common law experimental use exception and whether legislative action should be considered to enact such an exception. 

The comments note AIPLA’s general support for a clearly articulated, narrowly formulated statutory experimental use exception (EUE) under which uses of a claimed invention related to scientific, research, or experimental inquiries may be excepted from the consequences of acts of infringement. The comments urge that any statutory experimental use exception be an affirmative defense based on the circumstances surrounding an infringing activity. Thus, AIPLA suggests that a two-step inquiry might be established. First, a finder of fact would have to determine that an enforceable patent exists, and that infringement has occurred. Then, an evidence-based approach should be followed to determine whether an infringer was engaging in mere experimental use on the patented invention. If so, this would serve as an affirmative defense against the consequences of such infringing activities. The comments also offered thoughts on some statutory language. 

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