🚀 go-pugleaf

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...]