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Science 14 February 2003:
Vol. 299. no. 5609, pp. 1018 - 1019
DOI: 10.1126/science.1081790
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Policy Forum

SCIENCE AND THE LAW:
Patent Swords and Shields

Rebecca S. Eisenberg

The U.S. Court of Appeals for the Federal Circuit denied an "experimental use defense" in a patent infringement lawsuit against Duke University, signaling that academic researchers may be liable for use of patented equipment and processes even without use for commercial purposes. The court declared that the noncommercial character of the research in Madey v. Duke University was irrelevant. What matters is whether the research "is in keeping with the alleged infringer's legitimate business, regardless of commercial implications." In the case of a university, noncommercial research is "legitimate business," subject to the patent laws.

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