Chapter 3: Arguments Against Patent Protection
A INTRODUCTION It is understandable that, in a debate concerning patent protection for methods of medical treatment, emotive arguments would be invoked because they relate to an aspect of public life that inevitably evokes strong feeling. As Lockhart J. puts it in Anaesthetic Supplies v Rescare:1 Some people have a deep seated feeling or view that the art of a physician or a surgeon in alleviating human suffering does not belong to the area of economic endeavour of trade and commerce; and there is need for care lest a restriction on the freedom of action of those who treat patients endangers human life or health. A similar view was expressed by Professor Vaver when he stated that the exclusion for methods of medical treatment ‘springs from the ethical and emotional reasons based on a desire not to hamper the saving of life and the alleviation of suffering’.2 Where does this deep seated feeling originate? This chapter examines the arguments that are made against patent protection for methods of medical treatment that may form the underlying rationale for the exclusion of methods of medical treatment from patent protection.3 An emotive argument may arise from one’s view of what intuitively feels right. However, it still begs the question of the actual justiﬁcation of that view. In Bristol-Myers Squibb Co v F H Faulding & Co. Ltd,4 it was stated that ‘[t]he opponents to the grant of a monopoly in respect of medical and surgical processes raise objections that can...
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