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 11: Conclusions

Eddy D. Ventose

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


arrived at by their courts. The courts in New Zealand, taking a more cautious approach, rejected the notion that patent protection should be available for methods of medical treatment, in line with the UK authorities on the issue. However, the court in Australia rejected the UK authorities and held that, in principle, methods of medical treatment are not excluded from patent protection. Columns Design XML Ltd / Job: Medical_Patents_Law / Division: MPL_11 /Pg. Position: 2 / Date: 1/6 JOBNAME: Medical Patents Law PAGE: 3 SESS: 2 OUTPUT: Thu Jul 14 09:50:44 2011 Conclusion 435 3 The United States of America The US courts have also had to grapple with a similar problem viz. determining whether methods of medical treatment were patentable subject matter. The Patent Office Board of Appeal (US) (POBA) in ex parte Brinkerhoff excluded methods of medical treatment from patent protection on dubious grounds but the courts continued to allow patents for medical diagnosis. However, in 1954, ex parte Brinkerhoff was overruled by the POBA in ex parte Scherer thereby allowing patents of methods of medical treatment. In 1996, the United States Congress acted quickly in enacting the Medical Procedures and Affordability Act 1996 (MPAA) on the heels of the Pallin v Singer case where one physician sued another for infringing a medical procedure patent. The MPAA provided immunity from patent infringement suits to physicians and medical health care entities. A comprehensive discussion of the rationale for excluding methods of medical treatment...

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