Fair Use: A Workable Concept in European Patent Law?

Over the last decade, the patent system has sparked significant controversy worldwide. Concerns have been expressed about the expansion of the patent system, both in terms of patentable subject matter and of the numbers of patents granted. Irritation has equally been voiced with regard to certain (inadequate or unfair) uses of the patent system. As to the latter, various remedies have been put forward to deal with inadequate licensing practices (Sect. 2). However, patent law's toolbox may not be sufficient to redress restrictive licensing behaviour in all its facets. Recalling to mind the rationale of patent law and the underlying 'social contract' (Sect. 3), an alternative and seemingly more flexible remedy to deal with unreasonable behaviour is examined: the fair use exception (Sect. 4). We explore whether the fair use exception from US copyright law may be implemented in European patent law, and provide a tool to extend the 'social contract' to the post-grant phase. We field test the fair use doctrine in Europe by applying the doctrine on the Myriad case, a prime example of problematic licensing in the field of human genetics (Sect. 5). The fair use approach may equally be tested in other technological areas, such as the ICT or telecom sector, in order to learn to what extent the concept can apply to all fields of technology (Sect. 6).