A Research Exemption for the 21st Century

Nicholas Short

50 U. Mich. J. L. Reform Caveat 1 (pdf)

On March 20, 2015, Robert Kastenmeier, who represented Wisconsin’s Second Congressional District from 1959 to 1991, passed away at his home in Arlington, Virginia. Though Kastenmeier may not have been well known outside of legislative circles and his home state of Wisconsin, he was in fact one of the most prolific policy makers—if not the most prolific policy maker—in the field of intellectual property law in the 20th century. He is impressively credited with authoring more than forty-eight laws dealing with intellectual property matters during his legislative tenure, including the Copyright Act of 1976, which remains the primary legal framework for copyright law in the United States.

One of the last bills that Kastenmeier introduced in the House of Representatives was a major piece of patent reform legislation dubbed the Patent Competitiveness and Technological Innovation Act of 1990 (PCTIA). Kastenmeier introduced the bill on September 20, 1990, but left office less than four months later on January 3, 1991, after losing an election to Scott Klug. The PCTIA contained five separate titles, and dealt with subjects as varied as the patentability of inventions made in outer space to the repeal of state sovereign immunity from infringement liability. One of those titles, Title IV, garnered little attention at the time, but addressed a subject of tremendous importance today: the need to codify and strengthen the long-standing common law research exemption in American patent law.

I have written elsewhere about the political economy of the research exemption in American patent law from 1970 to the present day, with an emphasis on analyzing the political coalitions that have historically argued in favor of or against such exemptions, and the economic arguments they often invoke. The purpose of this article, in contrast, is to carry forward the torch that Kastenmeier lit, and argue in favor of codifying a robust research exemption. To that end, section two briefly explains how the law pertaining to research exemptions has developed since 1970, with an eye towards understanding what these developments mean for policy makers. Section three summarizes the findings of relevant survey evidence and statistical studies. Section four critiques several scholarly proposals for a research exemption or proposals that attempt to accomplish similar ends through different means, like the proposal for creating a “fair use” exception in patent law, or for modifying the Bayh-Dole Act to give federal funding agencies more discretion when determining whether the results of publicly-funded research should be patented. Section five concludes by summarizing the basic argument in favor of the Robert Kastenmeier Memorial Act, a new bill to codify a robust research exemption in American patent law.

 

Volume 50, Issue 4 Fall 2016

ARTICLES

Scott Shakelford
Human Rights and Cybersecurity Due Diligence: A Comparative Study (pdf)

Ari Schwartz, Sejal C. Shah, Matthew H. MacKenzie, Sheena Thomas, Tara Sugiyama Potashnik, and Bri Law
Automating Threat Sharing: How Companies Can Best Ensure Liability Protection When Sharing Cyber Threat Information With Other Companies or Organizations (pdf)

Alan Butler
Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices? (pdf)

NOTES

Ciara Turner
It Takes a Village: Designating “Tiny House” Villages as Transitional Housing Campgrounds (pdf)

Christine M. Quinn
Reforming State Laws on How Businesses Can Ban Guns: “No Guns” Signs, Property Rights, and the First Amendment (pdf)

 

 

Announcing JLR’s 2018 Symposium: “Changing Winds: Environmental Regulation in the Trump Administration”

The Michigan Journal of Law Reform is pleased to announce that its 2018 Symposium, “Changing Winds: Environmental Regulation in the Trump Administration,” will take place on February 10, 2018 in Michigan Law School’s South Hall, 625 South State St., Ann Arbor, MI.

The Symposium will run from approximately 9 A.M. to 5 P.M. and will feature the following panels and panelists:

Environmental Federalism: Erin Ryan, Erum Sattar, Justin Fisch.

Environmental Regulation and Real Business Cycles: Matthew Miller, Ed Hirs, Andrew Weissman.

Climate Change in the Trump Age: Elizabeth Geltman, Gabriel Tabak.

The 2018 Symposium’s Key Note Address will be delivered by Robert Billot of Taft Stettinius & Hollister.

A detailed schedule of the 2018 Symposium may be found here.

For more information on the Symposium, please contact Brendan Harvey, Managing Symposium Editor, at harveybr@umich.edu.

Volume 50, Issue 2 Fall 2016

ARTICLES

T. Leigh Anenson
Public Pensions and Fiduciary Law: A View From Equity (pdf)

Sheri Lynn Johnson
A Legal Obituary for Ramiro (pdf)

Simon Hedlin
Can Prostitution Law Reform Curb Sex Trafficking? Theory and Evidence on Scale Substitution, and Replacement Effects (pdf)

Derrick Darby and Richard E. Levy
Postracial Remedies (pdf)

NOTES

John Mylan Traylor
Shedding Light on the “Going Dark” Problem and the Encryption Debate (pdf)

Announcing JLR’s 2017 Symposium: “Stemming the Breach: Cybersecurity Reform for the 21st Century”

The Michigan Journal of Law Reform is pleased to announce that its 2017 Symposium, “Stemming the Breach: Cybersecurity Reform for the 21st Century,” will take place on February 11, 2017 in Michigan Law School’s South Hall, 625 South State St. Ann Arbor, MI.

The 2017 Symposium will run from approximately 9 A.M. to 5 P.M. and will feature the following panels and panelists:

Civil Liberties: featuring Marcy Wheeler, G.S. Hans, and Harley Geiger

Corporations: featuring Scott Shackelford, Ari Schwartz, and Alan Butler

National Security: featuring Harvey Rishikof, Cindy Cohn, and Ahmed Ghappour

The 2017 Symposium’s Key Note Address will be delivered by Former Congressman Mike Rogers

RSVP

A detailed schedule of the 2017 Symposium may be found here.

For more information on the Symposium, please contact Peri Tenenbaum, Managing Symposium Editor, at perilten@umich.edu.

Volume 50, Issue 1 Fall 2016

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ARTICLES

Nathanial Grow
Resolving the Divided Patent Infringement Dilemma (pdf)

Jianlin Chen
Optimal Property Rights for Emerging Natural Resources: A Case Study on Owning Atmospheric Moisture (pdf)

Anita Ortiz Maddali
Left Behind: The Dying Principle of Family Reunification Under Immigration Law (pdf)

NOTES

Shannon Seiferth
No More Quid Pro Quo: Abandoning the Personal Benefit Requirement in Insider Trading Law (pdf)

Jackson Pahlke
It is Time for Washington State to Take a Stand Against Holmes’s Bad Man: The Value of Punitive Damages in Deterring Big Business and International Tortfeasors (pdf)

Volume 49, Issue 4 Winter 2016

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ARTICLES

Deborah W. Denno
The Firing Squad as “A Known and Available Alternative Method of Execution” Post-Glossip (pdf)

Michael L. Radelet
The Incremental Retributive Impact of a Death Sentence Over Life Without Parole (pdf)

Andrew Novak
Transparency and Comparative Executive Clemency: Global Lessons for Pardon Reform in the United States (pdf)

David T. Johnson
Retention and Reform in Japanese Capital Punishment (pdf)

NOTES

Stephanie Balitzer
What Common Law and Common Sense Teach Us About Corporate Cybersecurity (pdf)

Hazel Blum
Reforming (But Not Eliminating) the Parental Discipline Defense (pdf)

Volume 49, Issue 3 Winter 2016

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ARTICLES

John Campbell
Where Kafka Reigns: A Call for Metamorphosis in Unlawful Detainer Law (pdf)

Shawn Bayern
Three Problems (And Two Solution) in the Law of Partnership Formation (pdf)

Jesi J. Carlson, Patrick J. Glen, and Kohsei Ugumori
Finality and Judicial Review under the Immigration and Nationality Act: A Jurisprudential Review and Proposal for Reform (pdf)

Brent Pattison
When Children Object: Amplifying an Older Child’s Objection to Termination of Parental Rights (pdf)

NOTES

Patrick Myers
Protecting Personal Information: Achieving a Balance Between User Privacy and Behavioral Targeting (pdf)