29-06-2012, 04:22 PM
Exclusion of Methods of Medical Treatment from Patentability
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ABSTRACT
Scope And Objective Of Research
The objective of the research is to analyze the methods of medical treatment as a patentable subject matter and the main objective is to see the impact of patenting of medical methods on right to health and medical care and whether their patentability should be prohibited.
Research Methodology
The researcher has adopted analytical and descriptive method throughout for this research paper. Researcher has relied on books, journals and online databases as well as classroom lectures which are valuable for researcher to find out the right path for this research paper.
Introduction
The patent system contributes to human prosperity by promoting the progress of science and technology. Its main purpose is to ensure progress by providing incentives to invent, to disclose, to design around and to invest. These incentives assure invention, innovation and efficient use of inventions. Amongst the various theories that exist today to explain the purport and rationale of the patent system, the most prevalent is the “incentive” or the “reward” theory. Patents are rewards in the form of temporary monopolies granted to inventors who come up with new, inventive and useful ideas. The expectation is that the prospect of such rewards would incentivize inventors to come up with a higher rate of useful inventions, than would be the case without patents. Owing to the advantages offered by the patent system, the scope of patentable subject matter has been ever expanding. Its appendages have spread to every imaginable field of science as well as technology.
Are Methods of Medical Treatment included under Patentable Subject Matter?
The United States Supreme court has given an unlimited scope to patentable subject matter by pronouncing that ‘everything under the sun made by man is patentable’. In addition to the traditional inventions, today’s patentable subject matter includes computer software, business methods, gene sequences, protein sequences, etc. The use of the patent system by the developed countries has inspired the developing countries also for their economic development.
The patentability of medical methods has been a developing issue worldwide. The issue eludes an easy solution due in part to its dual roots in patent law and medical law. The issue is further complicated by numerous ethical considerations surrounding the patenting of methods of medical treatment. Methods of medical treatment are excluded from patentability in a large number of countries today.
Is it unethical to grant patent protection to methods of medical treatment, does it impede medical care and violate right to health?
For more than a century, medical and surgical methods and processes for diagnosing and treating disease were not considered patentable. But in USA the patent and trademark office has estimated that as many as 100 medical procedure patents are issued every month.
A medical equipment or a medicine may be granted a patent as an “invention of a product” in itself, and a process of manufacturing it may be considered as an “invention of a process”. On the other hand, "methods for treatment of the human body by surgery or therapy and diagnostic methods practiced on humans” cannot be granted a patent in most of the countries presently. Specifically, "methods for treatment of the human body by surgery or therapy and diagnostic methods practiced on humans” are excluded from the scope of granting patents on the understanding that it cannot be an “invention that is capable of industrial application”.