Medical Patent Law – The Challenges of Medical Treatment

Medical Patent Law – The Challenges of Medical Treatment

Eddy D. Ventose

This book provides a detailed and comparative examination of medical patent law and the issues at the heart of the medical treatment exclusion for therapeutic treatments, surgical treatments and diagnostic methods.

Chapter 1: Introduction

Eddy D. Ventose

Subjects: law - academic, biotechnology and pharmaceutical law, health law, intellectual property law

Extract

A GENERAL This book will examine the scope of patent protection for methods of medical treatment,1 focusing on the exclusion of therapeutic, surgical and diagnostic methods in Europe, the United States of America and some Commonwealth countries. The focus on medical treatments is important in light of its exclusion from patent protection in most of the jurisdictions covered by this book, particularly in light of new developments in technology, including gene therapy, genetic diagnostic testing and stem cell therapy. Although the exclusion in the United Kingdom, for example, has been in existence for approximately 95 years, it was only in 1973, with the coming into force of the European Patent Convention (EPC), that the exclusion had a firm legal basis in most European countries. However, while in Europe the emphasis is on delineating the scope of the exclusion in decisions of the Technical Boards of Appeal (TBAs) and the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO), other countries, for example, the United States, are still struggling with the issue of whether medical procedures are excluded from patent protection. The question of whether patents should be granted for methods of medical treatment is still a live issue in some Commonwealth countries, in particular, in New Zealand where only six years ago, its Court of Appeal ruled that such methods are not patentable. However, in Australia, patent protection is available. In the United States, the issue of patentability was once thought settled and that methods of...