Journal of Intellectual Property Law & Practice Advance Access originally published online on December 22, 2006
Journal of Intellectual Property Law & Practice 2007 2(2):104-113; doi:10.1093/jiplp/jpl212
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© The Author (2007). Published by Oxford University Press. All rights reserved
Patenting of medical methods—need of the hour
LEGAL CONTEXT: There are differences between the legal system of various jurisdictions on the issue of patenting of medical and surgical methods. In some jurisdictions, methods of treatment of the human body are considered as patentable. The need to grant patent protection to medical methods is also reflected in the TRIPs Agreement.
KEY POINTS: The article attempts to highlight the importance of granting patent protection to medical methods. Patents relating to the medical field fall into several categories. Though all these patents raise ethical issues, they are accepted by the society and the medical profession and patents are available in all fields other than medical methods that include diagnostic, surgical, and therapeutic procedures.
PRACTICAL SIGNIFICANCE: With the technological developments, new medical methods require extensive research. The main concern is that medical methods increase the cost of healthcare and also stifle research. But these arguments are taken care of by the patent system itself that provides for compulsory licensing. The reality in the pharmaceutical industry shows that medical field is as sensitive to economic factors as any other. Decisions of the Courts in various jurisdictions provide a valuable insight into the need for protection of medical methods. The recent milestone decisions of the US Supreme Court and the Enlarged Board of Appeals of the European Patent Office are an eye opener.
Key Words: The patentability of methods of treatment or diagnosis is one of great sensitivity and indeed controversy, in that moral arguments against the monopolization of such methods are firmly pitted against economic arguments in favour of patent disclosure. • The debate is further complicated by the fact that the moral objections raised against the control of methods of treatment are not equally raised against the patentability of medicines and other healthcare subject matter. • In reviewing the key issues raised in this debate, the author suggests that the time has come for those jurisdictions that do not currently permit the patenting of methods of treatment should opt for a system in which safeguards are built into the grant of a monopoly grant, thus preserving the interests of patients, inventors, and society at large, as well as acknowledging the integrity of the patent system.
* Advocate, High Court of Kerala, India; Visiting Faculty, School of Indian Legal Thought, Department of Law, Mahatma Gandhi University, Kottayam, Kerala, India; sometime Visiting Research Fellow, AHRB Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh, Scotland. The author can be contacted at isaacs{at}justice.com. The author wishes to thank Dr Santhosh John Abraham, Department of Surgery, Lourdes Hospital, Cochin, Kerala, India; Dr Sunil K. Mathai, Gastroenterologist, Medical Trust Hospital, Cochin, Kerala, India; Dr S. Lal, Consultant Neurosurgeon and Assistant Professor, Pushpagiri Medical College and Research Centre, Thiruvalla, Kerala, India, Dr V.D. Sebastian, Former Dean, Department of Law, Cochin University of Science and Technology, Cochin, Kerala, India for their comments.