An Experimental Use Exception from Patent Infringement for New Zealand

This article discusses New Zealand's approach to experimental use of patents. The article focuses on the current proposal to include an experimental use provision in the patent legislation. The history of such an exception in the common law is examined. The article concludes that the introduction of an experimental use exception has been discussed in isolation of what is the best economic and research policy outcome for New Zealand. In particular, questions are raised as to who would use the exception and what research would it attract to New Zealand. The present lack of an experimental use exception has not had the effect of increasing patent‐related research in New Zealand. Therefore, the author suggests that, overall, an experimental use exception could be a good thing, but the research benefits need to be discussed more fully. Also any exception needs to be carefully crafted in a way that the current proposal, adopted from an Australian proposal, is not.