Article 11(2) of the German Patent Law provides for an exclusion from the scope of patent protection for "acts for testing purposes". However, the exact scope of this provision has been open to some doubt. This issue was recently considered by the German Supreme Court in the case Clinical Products II. In this decision, the Supreme Court reversed the decisions of the lower courts that the experimental use exception was confined to experiments aimed at further development and improvement of the patented product. The tests in question in the case were clinical trials of a patented polypeptide in order to determine whether it was marketable and whether the activity differed from a similar product (presumably the plaintiff's) that was already on the market. In the view of the Supreme Court one aspect of the testing was to determine the tolerability and effectiveness of the drug. Since this involved gathering information about unknown factors, it fell within the proper bounds of "testing" and was therefore not an infringement of the patent. The Supreme Court, however, indicated that testing done purely for purposes of confirming known information or for purely economic reasons, such as test marketing or trials to achieve marketing approval for a product identical with one that was already on the market might well fall outside the "testing" exception. On the other hand, if such results were obtained as a by-product of legitimate testing, this will not take the testing outside the scope of the exclusion.