The experimental use exception was originally conceived as a defense applicable when the infringing activities were philosophical. Over time the exception has evolved into a test of the profit motives of the infringer. Despite their status as non-profits, universities now find themselves under the same narrow interpretation of the experimental use exception as previously applied only to profit-seeking businesses. This article explains that the experimental use exception is still a viable defense to patent infringement for a student-sponsored capstone senior design project. In a student-sponsored capstone senior design project, the impetus and general direction of the project are provided almost exclusively by the students working on the project. Furthermore, the students involved are pursuing the project for precisely the same kind of philosophical goals identified when the experimental use exception was created. Therefore, student-sponsored projects have the greatest likelihood of having the exception available as a defense.
Henry L. Welch,
The Experimental Use Exception and Undergraduate Engineering Projects,
12 Marq. Intellectual Property L. Rev. 409
Available at: http://scholarship.law.marquette.edu/iplr/vol12/iss2/6