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I have tried searching for succinct answers to the following but that which I have found is ambiguous and murky. I am after black and white answers as many of us have probably come across this tricky area in research.

I've found a publicly available research paper in which the authors create and test a style of medical electrode. The style has been researched before by other universities around the world as well which focuses on replicating the van der Waals forces that gecko's feet utilise. They detail how they fabricated the electrode throughout the article. If I were to fabricate the electrode myself would this be infringement of either the author's or university of publication's IP if I were to:

i) fabricate for my own private personal testing of the device to see if I can better it in someway or alter it to meet my specific use requirements and not sell (private use)

ii) As per i) however choose to now sell this altered or bettered version of the device (commercialize once device is altered)

iii) fabricate unaltered the device in order to publicly sell the item (commercialize on the unaltered device)

Thanks!

  • Possibly more appropriate on Patents.SE – A. K. Sep 19 '18 at 1:50
  • Thanks TTE, good point. I had thought of that, however there was no indication that I could find that the authors or university patented the design. In addition, putting under Patents.SE rather than law might limit discussions to patents rather than also copyright, trademark or some other form of IP law that I hadn't even thought of or knew about. – astanton Sep 19 '18 at 3:31
  • "I am after black and white answers..." - Lol... That is like trying to pin Jello to a wall. – jww Sep 19 '18 at 6:14
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Very roughly:

You'll need to find out whether the electrode design is patented. You can't determine this just by reading the paper; the authors may have patented the design without mentioning it in the paper, or it could perhaps have previously been patented by someone else. Indeed, the fact that it's discussed in a paper, or that the paper is publicly available, is practically irrelevant to determining whether it's patented. You would probably have to do a patent search.

If the design is patented, then any of i, ii, iii would typically require the permission of the patent holder (which likely means they'll demand that you pay them). Doing any of i, ii, iii without permission would infringe the patent.

The precise details will depend on your jurisdiction, but taking United States law for example: "whoever without authority makes, uses, offers to sell, or sells any patented invention [...] infringes the patent." That pretty clearly covers all of i, ii, iii. There is no exception for private or non-commercial use.

Copyright doesn't have much relevance here. Copyright forbids you from copying the text of the paper, but has no power to restrict you from making use of the information expressed in the paper.

  • regarding (i) There is an experimental use exception for pharmaceuticals (§ 271(e)(1) exemption or Hatch-Waxman exemption.) and, theoretically a broad experimental use exception in common law. This article says good luck actually claiming that right. nysstlc.syr.edu/… – George White Sep 21 '18 at 22:40

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