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I wonder if the processes described in patents can be replicated in not-for-profit organisation, that is, organisations that by statutory contract do not aim to commercialise a "copied" version of what described in patents - and therefore cannot be sued for copyright infringement.

This question applies for USPTO, IEO, WIPO or any other country where it may concerns - that is, I m looking at which Countries may encourage adoption of novel industrial processes (described in patents) for maximising impact on society, opening up to diverse organisational models to carry innovation to society (not necessarily business entities).

I can elaborate further if needed - essentially I want to point out the case where an entity may use patents to replicate innovation in industrial processes, without the primary scope of making profit out of "unfair" / illegal competition.

Edited

I called in not-for-profit entities as an not exhaustive example. I am looking to any type of organisation that could replicate patents content, at least for not-for-profit or internal use (e.g. as a cooperative or "club" where use is for members only ).

My interest is in applied R&D, rather than making profit and illegal competition.

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  • Do research exemptions count?
    – user18033
    Jan 6, 2019 at 16:50
  • Can you elaborate @DonQuiKong ? Do you mean replicating a patent for research purpose ?
    – user305883
    Jan 6, 2019 at 16:51
  • exactly, at least in Germany, I think in Europe, it is allowed to do research on patented technology (note: it needs to be the focus of the research, not just something you use while doing research).
    – user18033
    Jan 6, 2019 at 18:24
  • @DonQuiKong let's imagine a situation like a sort of spin-off then: some people at university level are able to focus their research on replicability of patents, though to measure an effective impact they need to test it and apply it. Could they scale it up (e.g. for efficiency, for tech impact) ? Do they need to declare the focus of research on selected patents ex-ante? Do they need to be registered entities with a certain status to do so? Germany could be an interesting legislation, I'd like to know more about this possibility
    – user305883
    Jan 6, 2019 at 19:36
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    hard to say. Germany also has a personal use exemption, but to be honest, I don't know how far those exemptions go. I also suspect there won't be many court cases for reference as there's seldomly enough money involved. You wouldn't have to declare the focus ex-ante. The thing is that you can do research on patented technology, but not with the technology (e.g. you can't use a patented tool to do research on sth completely else)
    – user18033
    Jan 6, 2019 at 19:47

2 Answers 2

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Unlike copyright law, U.S. patent law has no concept of "fair use". (Law does not need to be logical or consistent.) If anyone makes, uses, sells, offers to sell or imports something that falls under the claims of an issued patent, they are infringing. The burden is on the patent owner to prove that infringement occurred. If infringement is proven, the patent owner could ask the court for an injunction to force the infringer to stop. Since a Supreme Court decision a few years ago, an injunction is far from automatic and might not be issued in the case you are talking about.

Besides the possibility of forcing infringers to stop their activities, the patent owner can also ask for payment related to the damages suffered. In the case of someone infringing in way that does not make money or take away any money from the patent owner, it would be hard to establish significant damages.

In practice, it would be odd for a patent holder to spend much money on lawyers to try to stop a non-profit that is just playing with the patented technology. I found an article Accessing other people’s technology for non-profit research that discusses this topic. It states that the only non-profit, non-commercial entity that anyone has taken to court is the U.S. government itself. Even though the government's goal was unrelated to making money, they still lost. The article states "As a rule, the USA Federal Circuit court, or its predecessor court, only has found exemptions when use was for idle curiosity or purely philosophical pursuits"

Separately, there is a "research exception", at least, in European law.

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  • tks @George White, could you mention a few real cases that may be similar to the scenario I described ? In practical terms, since you are also entrepreneur and pro-patent, have you ever found useful to read through description of embodiments of other works (other IP) to inspire partial replicability or similar embodiment but different scope of applications? I wonder how easy it is, in practical terms, to replicate embodiment described in IP (if it is like a disclosed recipe that, despite legal language, it is easy to read and process )
    – user305883
    Jan 6, 2019 at 19:32
  • This is only true in the US.
    – user18033
    Jan 6, 2019 at 19:44
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Let me preface by saying I am not a lawyer. Also I’m answering for the US and it’s possible that the answer varies by venue. As far as I know, there is no exception for nonprofits. After all, even if the nonprofit doesn’t make a profit, their use of patented technology represents lost sales for the patent holder.

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  • thanks @Eric for the argument "lost sales". I think one may reproduce the content of a patent, but applying it for context different from the industrial area of the patent holder. You raised the point there is no exception. Who will have to demonstrate the hypothetical NGO is infringing property rights?
    – user305883
    Jan 6, 2019 at 16:55
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    @user305883 It is up to the patent holder to enforce their patent rights. Thus the patent holder would sue the alleged infringer.
    – Eric S ♦
    Jan 6, 2019 at 23:18
  • What if the infringer is a cooperative ? would the patent holder have to sue all of the members?
    – user305883
    Jan 7, 2019 at 15:03
  • Can you maybe point out which are the actual patent rights granted to a patent holder? I understand patent rights are shaped on claims, and claims are tailored on specificity of industrial domains. However, one could take the tech described in patent A and tailored to industry A and implemented for an industry B: I thought infringement is when you compete on market A by copying patent A, but if there is no competition, embodied in a profitable business, than there would be not infringement.
    – user305883
    Jan 7, 2019 at 15:09
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    @user305883 This is an entirely new and complicated question. You could post it as such, but you should search the existing questions first. Any way, claims are the key.
    – Eric S ♦
    Jan 8, 2019 at 1:26

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