Strandburg reviews O'Rourke's proposal and discusses how to alter it in light of technological and legal changes. She summarizes her proposed fair use test on pages 45-46:
- Is there a justifiable failure to purchase or license due to: (a) The social value of making the invention available to a market that the patentee will not be able to serve, such as those who are unable to pay or those for whom the transaction costs of licensing are prohibitive (taking into account the potential damage to the patentee’s interests by arbitrage); (b) An "anti-patent" license failure due to the patentee’s attempt to squelch further innovation or to exert control over markets beyond the scope of the claims; or (c) A failure to license due to anticommons-type hold-up?
- Did the infringer make a substantial improvement over the patentee’s invention and was there some reason for blocking patent failure?
- Does the availability of alternative innovation paradigms in the technological arena provide evidence of reduced importance of patent incentives?
- Was the infringer a knowing copyist, independent inventor, or something in between? If the infringer was not a knowing copyist was her failure to locate the patent through search reasonable in light of patent search costs in the particular technology, custom in the industry, the foreseeability of infringement, and the infringer’s commercial, non-commercial, or small entity status?
Applying this test, Strandburg argues that these factors "would exempt open source software in most cases," unless the project "blatantly and knowingly copied patented code, encouraged its contributors to ignore patents when making their contributions, and so forth." She also applies the test to essential medicines and concludes that the analysis "will probably favor the patentee most of the time," but that there is "room for creativity on the part of organizations seeking to serve those who are unable to pay for essential medicines."
Strandburg acknowledges that this fair use framework is unlikely to be judicially implemented (as copyright fair use initially was) or legislatively enacted, but she argues that thinking about patent fair use is still useful: it could inform prongs of the eBay test for injunctive relief, and when proposals are made for exemptions from patent infringement, Strandburg's analysis could "provide guidance both in evaluating the need for a particular limited exemption and in designing its implementation." I agree that the creation of a fair use patent regime is unlikely, but this paper is an interesting thought experiment!
