Chapter 7: Conclusions
Although the issue seems of recent vintage, especially in light of the number of cases currently before the Federal Circuit (and those recently decided by it), the courts in the United States and the USPTO have confronted this issue of whether patent protection should be provided for medical procedures and diagnostic methods for over a century. The question was always whether the legal requirements of patentability were met; and, initially, when medical procedure patents were rejected, it was usually on the basis that they were not new. They were not rejected on the ground that they were incapable of being patentable subject matter. Ex parte Brinkerhoff was the only case that held they were not patentable because of the uncertainty of the results of such treatments. The fallacy of that argument was made clear in ex parte Scherer, which overruled ex parte Brinkerhoff to the extent that it had held medical procedures were not patentable subject matter under section 101 of the Patent Act.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.