Chapter 2: Arguments for Patent Protection
A INTRODUCTION The importance of public health to a country’s welfare and economy is such that governments usually spend considerable amounts of money in ensuring that there is an adequate supply of medical services and that medical research continues unabated.1 Ensuring that public health is not unnecessarily compromised by patent law should, therefore, be a legitimate goal of government. According to Dworkin, it is competent for governments to pursue arguments in favour of public health and to adopt programs and strategies that are generated by such arguments.2 But, before any government can make an informed decision either way on the patentability of methods of medical treatment, it should ensure that there is sufﬁcient evidence of the impact that they have on public health. It must also ensure that due consideration is given to the types of arguments that will be considered in this chapter.3 There was no major debate in Europe when the methods of medical treatment were excluded from patent protection under the European Patent Convention (EPC) in 1973. However, in the United States, the Medical Procedures and Affordability Act 1996 (MPAA) was preceded by a signiﬁcant amount of debate both inside and outside Congress.4 The main arguments for patenting methods of medical treatment are based on various rationales that have been used to explain the patent system: namely, the incentive to disclose; the incentive to invent/innovate; the prospect 1 For example, in the United States, $488.8 billion was allocated to the Department of Health and Human...
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