The experimental use and Bolar-type exemptions to patent infringement
Produced in partnership with Selina Badiani and Andy Bowler of Bristows LLP
The experimental use and Bolar-type exemptions to patent infringement

The following IP guidance note Produced in partnership with Selina Badiani and Andy Bowler of Bristows LLP provides comprehensive and up to date legal information covering:

  • The experimental use and Bolar-type exemptions to patent infringement
  • The UK statutory framework
  • Experimental use exemption
  • The Bolar-type exemption
  • SPC manufacturing waiver
  • Practical considerations
  • Research exemptions and the UPC
  • Change on the horizon

On 31 January 2020, the UK ceased to be an EU Member State and entered an implementation period during which it continues to be treated by the EU as a Member State for many purposes. As a third country, the UK can no longer participate in the EU’s political institutions, agencies, offices, bodies (except to the limited extent agreed), but it continues to be subject to EU law and must submit to the continuing jurisdiction of the Court of Justice of the EU in accordance with the transitional arrangements in Part 4 of the Withdrawal Agreement. For further reading, see: Brexit—Life Sciences and News Analysis: Brexit Bulletin—key updates, research tips and resources.

Patent systems are intended to foster innovation, not to impede it. For this reason, the patent laws of many jurisdictions contain exemptions to infringement for experimental use of patented inventions.

This Practice Note examines the two principal research exemptions to patent infringement available under UK law, namely, the general experimental use exemption and the specific ‘Bolar-type’ exemption, including how they have developed in recent years and how they may continue to do so in the future.

The UK statutory framework

Infringement

Patent infringement is governed by section 60 of the Patents Act 1977 (PA 1977). PA 1977, s 60(1) sets out the acts of direct infringement. It provides:

‘Subject to the