The doctrinal areas on which this essay focuses are two longstanding but narrow exemptions from patent infringement: one that permits scientific research, and one that permits the owner of a patented device to repair it. Though distinct at first glance, both of these doctrines act to permit activity that would otherwise be considered patent infringement. They are exceptions to the exclusivity that the law grants to patent holders – particularly the right to “make” a patented article and, to a lesser degree, to “use” it, and for this reason they are particularly salient when patents may impact critical lifesaving technologies. This essay recommends broadening the scope of the research exemption to cover a larger range of research activities conducted prior to the release of a commercial product; and recognizing the right of an owner of a patented product to make, or have made, replacement parts for that product, even if those parts may be covered by the claims of a patent or cross the line of “reconstruction” under current law. The implementation of these adjustments, conceived in light of the current coronavirus pandemic, could facilitate increased research, development and use of patented technologies and better prepare the U.S. to deal with the next great public health crisis.
Contreras, Jorge L., "Research And Repair: Expanding Exceptions To Patent Infringement In Response to a Pandemic" (2020). Utah Law Faculty Scholarship. 203.