Burying the Experimental Use Doctrine

On remand in Madey v. Duke University, in which the Federal Circuit euthanized the experimental use defense in patent law, the Middle District of North Carolina buried the decedent. The court denied Duke’s follow-on motion for summary judgment, noting that by admitting that it used the patented device for educational and research purposes, Duke had conceded that the experimental use doctrine did not shield it from liability. Duke will have one more shot at trial, but as the court said, it is virtually impossible that the University will succeed:

The Court finds that further motions or supplementation of the record with respect to the experimental use defense at this time would be unnecessary. Duke has offered absolutely no evidence showing that it is entitled to this defense. Rather, as discussed above, it has actually conceded that this research was done in furtherance of its legitimate business purposes, that is, educating its students, and it has offered no indication of any evidence it could offer to support this defense. In its Statement on the Course of Future Proceedings in this Matter, Duke stated that with respect to the experimental use defense it “is prepared to stand on the briefing it has already submitted on summary judgment ….” . . . This Court, however, has determined that Duke’s briefing and evidence presently before the Court on the experimental use defense are insufficient to entitle it to summary judgment. . . . [I]f Duke is able to marshal additional evidence on the experimental use defense, Duke may offer this evidence at trial. However, given the Federal Circuit’s extremely narrow conception of the experimental use defense and the total lack of evidence currently in the record, the Court has doubts about whether Duke will be able to provide any evidence in support of its experimental use defense.