Fracking Patents - Michigan Telecommunications and Technology ...

300 Michigan Telecommunications and Technology Law Review [Vol. 19:279lab—spillovers and externalities—that exist even if the invention is functioningexactly as intended. This need to understand safety through testing isthe rationale behind government pharmaceutical-approval systems, 124 andthe potential for patents to interfere is the reason behind the specific statutoryinfringement exemption. 125As restricted as the patent environment is in the US, it is possible thatthere may be more international flexibility. 126 Although not required by internationalagreements such as the Agreement on Trade-Related Aspects ofIntellectual Property Agreement (“TRIPS”), 127 many countries have an explicitexperimental use exception whether articulated through statute or commonlaw. 128 The boundaries of permitted use may be wider. 129 Still, it is notentirely clear that the exceptions in other nations extend to safety testing.And while the exception for pharmaceutical experimentation is relativelyestablished globally, 130 it is extremely limited in context and cannot providethe flexibility necessary to address safety concerns.Through a combination of litigation and tight licensing, patent ownerscan control a great deal of information. With no relief valve available, it thenbecomes more important to assess patent accumulation in fields of greatpublic concern. Because an understanding of the impact of patents on naturalgas technology is still emerging, it is helpful to look to other contexts for aview of what may come to pass.124. See, e.g., 21 U.S.C. § 355 (2011); Conducting Clinical Trials, U.S. FOOD & DRUGADMIN., http://www.fda.gov/Drugs/DevelopmentApprovalProcess/ConductingClinicalTrials/default.htm (last updated June 22, 2012).125. See 35 U.S.C. § 271(e) (2011); Merck KGAA v. Integra Lifesciences I, Ltd., 545U.S. 321, 202–04 (2005) (describing the pharmaceutical research exemption and the need toevaluate information from a wide range of testing).126. See, e.g., Norman Siebrasse & Keith Culver, The Experimental Use Defence to PatentInfringement: A Comparative Assessment, 56 U. TORONTO L.J. 333, 338–40 (2006) (comparingthe U.S. regime with the European approach, and concluding that Europe has a broaderexception).127. TRIPS permits limited exceptions so long as they “do not unreasonably conflictwith a normal conflict with a normal exploitation of the patent and do not unreasonablyprejudice the legitimate interests of the patent owner.” Agreement on Trade-Related Aspectsof Intellectual Property Rights, Art. 31, Apr. 15, 1994, Marrakesh Agreement Establishing theWorld Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994). However,there is no positive requirement for such an exception, and certainly nothing specific to experimentaluse.128. See, e.g., AUSTL. GOV’T ADVISORY COUNCIL ON INTELL. PROP., PATENTS AND EX-PERIMENTAL USE 38–44 (2005) [hereinafter AUSTRALIAN STUDY], available at http://www.acip.gov.au/library/acip%20patents%20&%20experimental%20use%20final%20report%20final.pdf (reviewing the experimental use provisions of the U.S., the U.K, Germany, Japan,Canada, and New Zealand); CENTRE FOR INTELL. PROP. POLICY & HEALTH LAW INST., THERESEARCH OR EXPERIMENTAL USE EXCEPTION: A COMPARATIVE ANALYSIS 7–38 (2004), availableat http://www.cipp.mcgill.ca/data/newsletters/00000050.pdf (comparing the experimentaluse provisions of Australia, the U.S., Germany, the U.K, and France).129. See Siebrasse & Culver, supra note 126, at 338.130. AUSTRALIAN STUDY, supra note 128, at 44–45.