The so-called research exemption arises from § 11 No. 2 patent law. It says:
„The effect of the patent does not apply to […] actions for experimental purposes relating to the subject matter of the patented invention.“
Thus, actions for experimental purposes are not unlimitedly admissible, but only if they relate to the “subject matter of the patented invention.” Accordingly, admissible are:
- trials serving for further development of the protected good or the protected method
- trials serving for establishing whether or not the protected good or the protected method is practicable, suitable, or technically usable.
However, the use of protected goods or methods in carrying out trials to develop other inventions is inadmissible. Such a trial is no action relating to the subject matter of the patented invention, but an action with this subject matter.
In other words, the patented good or the patented method themselves have to form the trial subject matter and must not only be a measure in trials. For example, the use of a patented analysis apparatus in a research institute (without the consent of the patentee) is not admissible.