'FAIR USE FOR PATENTS' PROPOSED BY PUBPAT EXECUTIVE DIRECTOR AT FORDHAM IP CONFERENCE IN CAMBRIDGE
NEW YORK -- April 15, 2009 -- The Public Patent Foundation's ("PUBPAT") Executive Director, Dan Ravicher, proposed the concept of a Fair Use doctrine for patents this afternoon at the Fordham Intellectual Property Law Institute's Seventeenth Annual Conference on Intellectual property Law & Policy held in Cambridge, England.
In his presentation, Mr. Ravicher made the following general points. First, while both copyright and trademark law have a defense of fair use to protect societal interests believed to be more important than those served by intellectual property, patent law has no such exception to infringement. This begs the question of whether patents can restrict the exercise of civil liberties or other activity that infringes patents but nonetheless is of positive net social value. If a fair use defense for patents makes sense, the next - and perhaps harder - step is to address the definition and implementation of such a doctrine.
Mr. Ravicher then suggested research on (not merely with) patented things should be a fair use for both economic and civil liberty reasons, including allowing for advancement of science and independent testing of patented things for critique or commentary purposes. In addition, Mr. Ravicher cited three patents as examples to identify other potential civil liberty concerns that patents may raise. One - on jury selection - could impact due process rights of clients whose attorneys are prohibited from most effectively representing them at trial. Another - on RU486 - relates to the right of privacy and particularly a woman's right to choose to have an abortion. The third - impacting political advocacy - directly relates to the exercise of free speech.
Mr. Ravicher closed by posing the question of how a potential fair use doctrine should be crafted to protect any of these liberties while also not vitiating the economic incentives to innovate in fields potentially impacting on civil rights.
After presenting his proposal, Mr. Ravicher's proposal received comments from Trevor Cook of Bird & Bird in London, and David Perkins of Milbank in London and then answered questions from the audience.