What Copyright Teaches Patent Law About Fair Use: And Why Universities are Ignoring the Lesson

Abstract

Copyright law has a clearly-established doctrine of "fair use." While its parameters and applications are frequently debated, the existence of the doctrine is statutory and undisputed. Patent and copyright law are closely related and they freely borrow from each other, yet this important area of copyright has not been "taught" to patent law. Instead, patentees and infringers alike are left with more draconian, typically all-or-nothing litigation options. A clear and comprehensive "fair use" doctrine would therefore be in the best interest of the patent community, technology users, and public policy. Yet there is resistance, due to the dilemma this article refers to as the "Paradox of the Patent Community" wherein the primary patent infringers are also primary patent owners. The "Paradox" results in a strong disincentive for technology users to fight for a clear doctrine of "fair use." Unfortunately, universities are major players in this scenario, arguing as much against "fair use" as for it. This article explores the rationale for a clear "fair use" doctrine in patent law; historical bases for applying one; analysis of the June, 2005 Supreme Court Integra decision; a discussion of how and why copyright's statutory "fair use" doctrine may be adapted to patent law; and scenarios where compulsory licensing should be considered. With this analysis, the article offers a logical scheme that would satisfy the intent of our Founding Fathers to "promote the Progress of Science and the useful Arts" by encouraging necessary and useful innovations at great benefit to society.