Tuesday, July 17, 2007

Medical Technique Patents in the Spotlight

While the software community has decried independent programmers that sue large companies on their patents, it appears that this practice has spread to other technological areas as well. Recently, a trend has emerged where doctors are obtaining their own patents, and then asserting them against medical device companies in court. While such litigation has been around for a while, some are speculating that the practice is on the rise.

The most notable example is the case of Medtronic v. Michelson, where doctor Gary Michelson (via his licensing firm, Karlin Technology Inc.) received a $1.35 billion dollar settlement over his patented implants and spinal surgery techniques. Recently, the CAFC upheld an infringed patent on a surgical method for removing a claw from a domesticated cat (Young v. Lumenis).

And doctors suing other doctors was not unheard of, either. In the 1995 case of Pallin v. Singer, eye surgeon Dr. Samuel Pallin sued several of his peers for the infringement of a medical procedure patent covering a new cataract surgery technique. During this litigation, the American Medical Association House of Delegates voted to condemn the patenting of medical and surgical procedures, and prompted Congress to attempt to outlaw the practice. While legislation was enacted to prohibit method infringement lawsuits against doctors, medical device makers can be liable for inducing infringement of a method by a doctor.

Legal and academic organizations such as the American Association of Orthopedic Surgeons estimate that 100 medical process patents are issued each month, which is double the amount in the 1980s. When the USPTO was contacted by the National Law Journal, a spokesman commented that "because we are seeing an increase in medical/surgical method applications," more hires are being sought.

• Read "As Medical Patents Surge, So Do Lawsuits", The National Law Journal (link)

• See also "Patients v. Patents? Policy Implications of Recent Patent Legislation", St. John's Law Review (link), and "Should Patenting of Surgical Procedures and Other Medical Techniques by Physicians be Banned?", IDEA (1996) (link)

• Follow patent-related news storied on Surgery Litigation & Law Weekly (link)

3 Comentários:

B said...

Your lede is a bit misleading. In both the world of software and medicine, the question is not about who is suing whom, but about the fundamental question of whether these fields should be in the scope of patentability. We can discuss software later, but many, such as the AMA, consider patenting medical procedures to be against the Hippocratic oath. A doctor is expected to share all information that can help patients, and the AMA and others consider patents to be somewhere between a hindrance and a contradiction to that principle.

So you can mark up the rise in patents to two sources: either more non-MDs getting into the field, or more doctors who are (by the AMA definition) behaving in an unethical manner.

Anonymous said...

"b" says that a doctor is expected to "share all information that can help patients" and seems to imply that filing for a patent is contrary to this policy.

I tend to disagree. A doctor that files a patent on a new medical process that he is using IS sharing the "knowledge" as his patent will be published and available to doctors everywhere. Would it be better that doctors simply hoard their novel surgical or other methods by maintaining them as trade secrets?

Perhaps "b" meant to say "sharing the method or process" and that makes sense....but the "information" is most certainly shared by filing for a patent....at least once the patent application is published or issues.

John Rizvi
Intellectual Property
Law Blog

Anonymous said...

I suppose the sharing stops and the restriction begins when the patent holder refuses to allow another doctor to use the technique.

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