Immaterialgüter- und Wettbewerbsrecht

A Patent Use Exemption for User-Generated Innovation. The Maker Movement Meets Patent Law.

The research primarily focuses on the impact of patent law on end user-generated innovation. It addresses the question of the efficacy of patent flexibilities, enabling patent infringement defence; and examines those measures with regard to the scope of freedom to operate they provide.

Letzte Änderung: 17.06.14

The powerful phenomenon of user-generated innovation, called the Maker or DIY Movement, User Innovation, or Prosumption, spans in diverse domains: from low-to high-tech innovations. As it gets more technologically advanced it encounters patent law …and patent holders claiming patent infringements.

This project addresses the question of the efficacy of patent flexibilities, enabling defence against patent infringement claims, and examines those measures with regard to the scope of freedom to operate provided. Attention has been given to individual end users, Makers, who 1) develop to use rather than to sell, 2) freely share and disseminate inventive ideas within user communities and/or family, friends (free revealing).

The adopted research scenario revolves around the collective making: when an idea leaves the safe “private” harbour and enters the open water of knowledge dissemination and commercialisation, where a patent infringement may easily occur. Given these conditions, the hypothesis is that the existing patent flexibilities, e.g. private and non-commercial use, experimental use, are too narrow to be maker-protective. Designed to safeguard the freedom to operate, they do not fulfil their role in this specific context. Additionally, the ongoing expansion of patent rights limits knowledge diffusion and the access to resources.

To measure the hypothesis the project adopts two methods: an empirical study and a comparative analysis. The empirical study conducted in a form of an online-survey conveys the information on the experience of Makers with patent law in the context of a possible patent infringement. The comparative analysis of patent tools employed in four patent systems (Germany, the US, the UK and Japan) scrutinises the regulatory situation with regard to the freedom to operate.

Concluding, current patent law does not guarantee sufficient predictability: despite various interpretative guidelines, each claim must be decomposed into single pieces, with an uncertain outcome. Further, under the dominating mind-set, patentee’s rights are of higher concern and the balance of interests gets a raw deal. Makers are safe as long as their achievements do not generate much revenue and they do not “stick out”. The troublesome element is free revealing and therefore a solution should be sought in the area of permissible public use of a non-commercial character.



Natalia Łukaszewicz


Prof. Dr. Annette Kur


Schutzgrenzen im Immaterialgüterrecht