Subject: Re: [Patents] Patents: Experiments Exempt, Except at Universities

From: Francois PELLEGRINI <[email-masked]>
Date: Fri, 21 Mar 2003 09:59:19 +0100

Hello Carl and all,

Just a small word to say that I follow
(from fery far away) your debates, and
that I am pleased to see you advancing.

Just a small reference below as a follow-up
to DALI'2001 and the debate we had on the
notion of "university", as in "universalism".
The trend is going the wrong way, and it is
hard to change the trajectory.

Sincerely,

				f.p.

Seth Johnson wrote:
> (So, tell me this finding, Madey vs. Duke U., is not a direct consequence of
> Bayh-Dole in the United States?  Note the reference to the business of
> universities being the securing of "lucrative research grants."  Does
> anybody know anyone at Duke University who could be contacted about this in
> connection to the Bayh-Dole implications?  From the Free Online Scholarship
> blog. -- Seth Johnson)
> 
> FOS News - http://www.earlham.edu/~peters/fos/fosblog.html
> 
> More on patents to block free inquiry...In the March 10 issue of The
> Scientist, Ed Ergenzinger and Murray Spruill  summarize the consequences of
> last year's holding in Madey v. Duke University
> (http://www.the-scientist.com/yr2003/mar/fine_030310.html) (Federal Circuit
> Court of Appeals, October  2, 2002
> [http://216.239.33.100/search?q=cache:fXg3rVyVSIsC:www.fedcir.gov/opinions/01-1567.doc+%22Madey+v.+Duke+University%22&hl=en&ie=UTF-8]).
> You might know that "experimental use" is a defense against patent
> infringement. That's true. You might think that  scientific experimentation
> in universities is covered by this rule. It isn't. The experimental use
> defense doesn't apply when  the experiment serves the business interests of
> the alleged infringer. Since the business of universities is "educating and 
> enlightening students and faculty" and securing "lucrative research grants",
> and scientific experimentation serves these  goals, the experiments are not
> covered and patent-holders may sue for damages. Madey was the first case to
> apply this  doctrine to universities. 
> 
> In Madey, the alleged infringement was the unauthorized use of a patented
> laser in a scientific lab. But to see how the Madey  doctrine can thwart
> even basic research into nature, without regard to the technologies of
> research, recall the application by  Andras Pellionisz to patent any attempt
> "to count, measure and compare" the fractal properties of DNA introns
> (http://www.sfgate.com/cgi-bin/article.cgi?file=/gate/archive/2002/11/21/jnkdna.DTL&type=printable)
> (blogged to  FOS News on 11/26/02). (3/19/2003 5:30:05 PM)
> 
> Christina Dyrness profiles ibiblio, the University of North Carolina's
> venerable free online archive, in the March 12 issue  of the Raleigh News &
> Observer. Did you know that it was launched in 1992 as the SunSite
> repository of public domain  source code? Did you know that Eric Raymond
> managed the archive for a time? (Thanks to LIS News.) (3/19/2003 4:56:59 
> PM)
>