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To: Edsquire
Not true.
35 U.S.C. § 271 (emphasis added): (a) [W]hosoever without authority makes, uses, offers to sell, or sells any patented invention [in the U.S., or imports it], infringes the patent.


Maybe so, but courts have somewhat consistently (though not exclusively) supported the concept of "experimental use" by falling back on the legal theory for the granting of patents...that they should allow inventors to profit from their inventions without having competitors steal their markets. Courts have held that "experimental users", people who duplicate a patented object for their own use and enjoyment without the intention to sell or profit from the resulting duplication, are not infringing on the patent holders ability to market and profit from his invention, and are therefore exempt from patent law. If I made one or two in my garage for my own use, it's legal. If I made 50 and gave them to my friends, it wouldn't be. If I made one or two copies of this companies woodworking equipment for my business, with the intent to profit from its use, it WOULDN'T be legal. If I were a hobbiest and built my own copy of this tool so that I could build myself a better gunrack for my family room, it WOULD be legal.

One of the problems with patent law is that it isn't as clear as it looks. The law itself is simple, but the tremendous amount of case-law that exists on top of that law to "define" its meaning can make actual legal practice both confusing and contradictory.
18 posted on 10/24/2003 11:46:06 AM PDT by Arthalion
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To: Arthalion
Courts have held that "experimental users", people who duplicate a patented object for their own use and enjoyment without the intention to sell or profit from the resulting duplication, are not infringing on the patent holders ability to market and profit from his invention, and are therefore exempt from patent law.

I believe you are reading the defense of experimental use far more broadly than the case law supports, primarily by an incorrect definition of the term. The defense is strictly limited to bona fide research; it has been expressly rejected where the "research" is to adapt the patented invention to a business purpose (e.g., generic drugs), and has never to my knowledge been defined to encompass "personal use and enjoyment."

In fact, your assertion that infringement is legal for one's "own use and enjoyment without the intention to sell or profit from the resulting duplication," is not supported by your proffered justification that it is "not infringing on the patent holders ability to market and profit from his invention." Your example is illustrative: If you duplicate every detail of a Jeep (or two) in your garage, including patented parts, for your own use and enjoyment, you have very much affected the patent-holder's profits -- you've cost him one (or two) sale(s) (and please don't resort to the software pirate's lame excuse that "I would not have otherwise bought one, so no lost sale"; you're riding around the countryside in a patented invention for which the patent holder received no remuneration). I am positive such use would not be accepted as "experimental," and would not be considered a valid defense to a charge of patent infringement.

As a practical matter, an individual making one infringing copy for personal use is not likely to be sued, particularly where the infringement involves a woodworking jig rather than an automobile... but that doesn't mean the activity is legal. (And who knows, the woodworking tool makers association may take a page from the RIAA and surprize us on the enforcement front...)

If I were a hobbiest and built my own copy of this tool so that I could build myself a better gunrack for my family room, it WOULD be legal.

You could do so with impunity, but it would most definitely not be legal.
22 posted on 10/24/2003 12:39:43 PM PDT by Edsquire
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