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- Newsgroups: comp.patents
- Path: sparky!uunet!munnari.oz.au!metro!basser.cs.su.oz.au!news
- From: William Humphries <humphrie@ssc.wisc.edu>
- Subject: [ADMIN] Comp.patents FAQ
- Organization: Basser Dept of Computer Science, University of Sydney, Australia
- Date: Thu, 27 Aug 1992 17:53:53 GMT
- Approved: patents@cs.su.oz.au
- Message-ID: <1992Sep2.070624.19088@cs.su.oz.au>
- Sender: news@cs.su.oz.au (News)
- Lines: 33
-
-
- A follow up to a question in the FAQ about "is construction of infringing
- devices for user's own amusement."
-
- >From case law:
- "As early as 1813, Justice Story had carved out an execption to
- the prohibition against 'use,' called the experimental use exemption.
- If the patented article was made or used for philisophical purposes (
- today we would substitue purely scientific), amusement or curiosity
- purposes, it was not actionable."
-
- Whittemore v. Cutter, 29 F. Cas. 1120 (CCD Mass 1813), op cite in
- Krulwicvh, "Statutory Reversal of Roche v. Bolar", Food Drug
- Cosmetic Law Journal, 40, 519-525 (1985).
-
- When Roche Products sued Bolar (a generic drug manufacturer) for infringing
- their patent on Dalmane, Bolar claimed that their use of the active ingre-
- dient was strictly intended for obtaining FDA approval of the generic
- form of Dalmane once Roche's patent expired. Bolar's defense was while
- using the active ingredient for obtaining FDA approval to market Dalmane
- was not exactly the exception Justice Story described, the Story exception
- did leave space for Judicial interpretation.
-
- The appelate court did not agree, but that's moot since the Waxman-Hatch
- Amendments to the Food and Drug Act were enacted in 1984.
-
- Bill Humphries
- Graduate Student
- Department of Economics, UW Madison
- humphrie@ssc.wisc.edu
- 608-262-4543
-
- [mod- I shall include this in the FAQ...]
-