In this article I analyze the proper scope of an experimental use exemption from patent infringement liability by comparing the rationales behind promoting technological progress through granting exclusive patent rights in inventions with competing arguments for promoting scientific progress by allowing all investigators to enjoy free access to the discoveries of other scientists. I begin by reviewing key features of the patent laws and theoretical justifications for granting patent monopolies in order to clarify the implications of existing patent doctrine and theory for an experimental use exemption. I then look to the literature in the sociology, history, and philosophy of science for reasons to permit researchers to have free access to prior scientific discoveries. With this background, I offer suggestions on the proper scope of an experimental use defense in light of the purposes of the patent laws and the needs of the research science community. I conclude by using two recently patented inventions with obvious implications for future biomedical research as examples to illustrate which research uses should be subject to the control of the patent holder and which uses should be allowed to proceed without a license.
Eisenberg, Rebecca S. "Patents and the Progress of Science: Exclusive Rights and Experimental Use." U. Chi. L. Rev. 56 (1989): 1017-86.