Patents and the Progress of Science: Exclusive Rights and Experimental Use

The patent laws confer exclusive rights in inventions and discoveries in furtherance of a constitutional purpose "To Promote the Progress of Science and useful Arts."' Yet the idea that exclusive rights in new knowledge will promote scientific progress is counterintuitive to many observers of research science, who believe that science advances most rapidly when the community enjoys free access to new discoveries.2 These divergent perspectives on how best to promote scientific progress potentially conflict when subsequent investigators use patented inventions in their research. In theory, one might expect each of these perspectives to predominate in its own separate sphere of basic or applied research.3 In the basic research sphere, academic scientists could publish their discoveries to the scientific community and build on each other's prior research without fear of infringement liability, while in the applied research sphere, industrial scientists could keep their discoveries secret or patent them for exclusive commercial development by their employers. But in practice these two