The Many National Formulations of the 'Private and Non-Commercial Use' Exception in Patent Law : Which, If Any, Satisfy Trips?

To achieve the core goal of the patent system, the stimulation of innovation, inventors are granted a limited monopoly over their invention in exchange for its public disclosure. Exceptions, which are intended to provide safe harbors to users of the protected invention in ways what would otherwise be infringing, are an important means of limiting the patentee's monopoly. For an exception to be valid, at least among WTO countries, it must satisfy the requirements of TRIPS Article 30. This study considers the 'private and non-commercial use' exception which is a component of patent law in nearly 90 countries. Having characterized and defined the key terms of the various national formulations of this exception based upon national explanations and related legislation, case law and standard dictionary definitions we applied the Article 30 3-Step test in each case. Our study shows that of the 88 countries whose patent legislation includes the 'private and non-commercial use' exception, 32 fail the Article 30 test. Our study of the core terms of the various formulations and the implications when the 3-Step test is applied suggest the ways in which this exception can satisfy the requirements of TRIPS