Free Republic
Browse · Search
News/Activism
Topics · Post Article

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
[ Post Reply | Private Reply | To 18 | View Replies ]


To: Edsquire
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."

I disagree, in that I'm taking my definition of experimental use directly from current and historic case law. Just last year Duke University LOST a patent infringement lawsuit because they incorrectly tried to classify some for-profit infringement as experimental use. The Federal Circuit Court of Appeals stated in their ruling that the "very narrow and strictly limited experimental use defense" applies only if use of the patented invention is "solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry," and that the defense does not apply if the use is "in furtherance of the alleged infringer’s legitimate business". The experimental use defense for private, non-profit, and non-commercial infringement has been case law since the early 1800's, and has been well established in multiple rulings since.

If I wanted to duiplicate our theoretical "patented Jeep" for my own enjoyment, it's perfectly legal for me to do so. Why? Because my duplication of that Jeep DOES NOT present a danger to their business.

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 disagree, and in this case feel that the "wouldn't have bought it anyway" excuse actually DOES apply. How many people build their own electronics, cars, and medicines? Very few. How many could legally do so if they wanted? All of them. Why don't they? Because it isn't worth the time, or added expense, to do most of those things...it's almost always cheaper and faster to purchase a mass produced item from its patented owner than it is to duplicate it yourself. The few people who DO create these kinds of things on their own typically do so out of pride ("Cool, I built that!"), or because they want to understand how they work. That is the EXACT reason the experimental clause exists.

My theoretical Jeep would be for "amusement" (it would be fun building it AND using it), and to "satisfy idle curiosity" (how hard is this really, and can I do it?). Have I cost Jeep a sale? No, because I WOULDN'T have bought one anyway, because 'somebody elses Jeep' wasn't what I was looking for.

Of course, this is really all irrelevant as it pertains to the article we're discussing. In this case, the Stots Template Master isn't a patented item, and is neither covered by U.S. Patent law nor U.S. Copyright law. Their "shrinkwrap" license isn't legal or enforceable, because it's based on sections of copyright law that don't apply to physical inventions.
23 posted on 10/24/2003 3:00:19 PM PDT by Arthalion
[ Post Reply | Private Reply | To 22 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson