The federal courts havenonetheless developed a "common law" experimental use privilege using their judicial powers. (46) Asexplained in numerous judicial opinions, the experimental use exception applies only to uses donefor amusement, to satisfy idle curiosity or for strictly philosophical inquiry. Tests,demonstrations, and experiments of such nature are intended uses of the infringing aircraftmanufactured for the defendant and are in keeping with the legitimate business of the using agency.Experimental use is not a defense in the present litigation. The Court of Appeals characterized the experimental use privilege as "very narrow and strictlylimited." (55) Inparticular, the Federal Circuit observed that the experimental use privilege "does not immunize anyconduct that is in keeping with the alleged infringer's legitimate business, regardless of commercialimplications." This report summarizes these competing views. (87) 
It is also important to remember that the patent law may, in certain circumstances, provideresearchers with the ability to use products even though they have been patented by others. This step would be an act of patent infringement, however, because the rightto make a patented invention is exclusive to the patent owner. However, it should be noted that the PatentAct of 1952 includes a limited statutory experimental use privilege for patents on pharmaceuticals,medical devices, and certain other products regulated by the Food and Drug Administration (FDA). This provision, enacted as part of 1984 legislation known as the Hatch-Waxman Act, (91) applies to firms seekingto market generic equivalents of brand-name products. In addition, Congress has enacted otherintellectual property legislation that incorporates provisions shielding researchers from infringementliability. (123) 

	Legislative Issues and Alternatives

Should congressional interest continue in this area, a variety of options are available. If thecurrent scope of the common law experimental use privilege is deemed to be appropriate, then noaction need be taken. Alternatively, Congress could enact legislation confirming the narrowlycabined view of the experimental use privilege as set forth in Madey v. Duke University andpredecessor cases. If reform of the experimental use privilege is deemed prudent, however, another possibilityis the introduction of some additional form of the experimental use privilege into the Patent Act of1952. A limited experimental use privilege may best encouragetechnological advancement by rewarding successful researchers with patent rights that are not easilycircumvented. However, some commentators believe that the circumscribed nature of theexperimental use privilege may in fact restrict researcher access to state-of-the-art technologies andthus discourage further technological development.
Congress has identified research and development (R&D) as important contributors totechnological progress. The performance of R&D may have intellectual property ramifications,however. To the extent that researchers use patented inventions without authorization, they may faceinfringement liability. Although the courts recognize an exception to patent infringement known asthe "experimental use privilege," this judicially created doctrine has been described as very narrowand rarely applied. In particular, the experimental use privilege applies only to uses done foramusement, to satisfy idle curiosity or for strictly philosophical inquiry. This doctrine does notexcuse uses that are in keeping with the accused infringer's business objectives.
In 2002, the U.S. Court of Appeals for the Federal Circuit applied these principles in the caseof Madey v. Duke University . The court held that the experimental use privilege does not apply toactivities that are "in keeping with the alleged infringer's legitimate business" -- even though thebusiness of the defendant, Duke University, was nonprofit research. This ruling has raised concernsamong some representatives of universities and research institutions, who fear that their basic R&Dactivities will subject them to patent infringement lawsuits.
Competing views have arisen over the significance of the Madey v. Duke University case. Some commentators believe that a limited experimental use privilege may best encouragetechnological advancement by rewarding successful researchers with robust patent rights. Othersargue that the restricted nature of the experimental use privilege may in fact limit researcher accessto state-of-the-art technologies and thus discourage further technological development. Still othersassert that this issue is not of great practical importance, as few patent owners will likely file costlyand time-consuming lawsuits against researchers who are not making commercially important usesof patented inventions.
The judicially created, "common law" experimental use privilege is complemented by alimited statutory experimental use privilege for patents on pharmaceuticals, medical devices, andcertain other products regulated by the Food and Drug Administration. This provision, enacted aspart of the 1984 Hatch-Waxman Act, applies to firms seeking to market generic equivalents ofbrand-name products. In addition, Congress has enacted other intellectual property legislation thatincorporates provisions shielding researchers from infringement liability.
Should congressional interest continue in this area, a variety of options are available. If thecurrent scope of the common law experimental use privilege is deemed to be appropriate, then noaction need be taken. Alternatively, Congress could enact legislation confirming the limitedexperimental use privilege recognized in Madey v. Duke University and predecessor cases. Introduction of a broader form of the experimental use privilege into U.S. patent law is an additionalpossibility. The report will be updated if events warrant such action.