• Madey v. Duke University, 307 F.3d 1351 (Fed. Cir. 2002): University (non-profit) not necessarily granted experimental use exemption for patented technology (utility patent).

• The PVPA contains an entire constellation of exceptions and exemptions that might be argued to reflect collectively a vision of allowable experimental use. For example, the PVPA includes a safe harbor provision shielding from liability any act done privately and for noncommercial purposes.

• It remains to be seen whether the experimental use defense to patent infringement will emerge as a significant force in shaping U.S. patent rights, either across technologies or specifically within plant breeding and plant biotechnology.

• Particle-mediated (“gene gun”) transformation, one major transformation technology particularly suited for the production of genetically-modified corn and other monocots, is subject to patent protection in the U.S. E.g., U.S. Pat. No. 4,945,050 (Method for transporting substances into living cells and tissues and apparatus therefor); see generally Finer, J.J., et al. (1999).

• Another major transformation technology particularly effective in dicots, Agrobacterium-mediated transformation, is subject to many claims of patent protection. E.g., U.S. Pat. No. 6,051,757 (Regeneration of Plants Containing Genetically Engineered T-DNA).
• Etc....