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Patents — Prescription for Disaster


Tags Legal SystemMonopoly and Competition

As Medical Patents Surge, So Do Lawsuits reports that

A surge in patents that protect surgeries and other medical methods has triggered numerous lawsuits in recent years, with inventors fighting more vigorously than ever to protect their intellectual property rights. ... Patent lawyers say doctors and scientists are suing to protect everything from laser eye surgery techniques to stent procedures to methods for declawing a cat. ... The medical community is weary of the trend, noting that threats of patent infringement litigation could interfere with effective patient care.

In one recent case, "Dr. Gary Michelson ... in 2005 received a $1.35 billion settlement after suing a medical device company over his patented spinal surgical technique that speeds recovery". "About 100 medical-process patents are issued a month — double the amount in the 1980s."

Naturally, patent attorneys don't complain: "'My business is booming,' said patent lawyer Glen Belvis of Chicago's Brinks Hofer Gilson & Lione, who credits technological advances for driving the medical-patent boom. 'As a patent lawyer, I have a ton of great, innovative things that I can now protect.'" These guys can see the silver lining in anything: according to one patent attorney, medical device and process patents "provides something for other companies to work around. The patent is out there. It's wide open. The whole world looks at it and thinks, 'How do I get around it?' That inspires more creativity and more development." In other words, because you are prohibited from using a device or technique you want to use, you are forced to think of other (usually more costly or less effective) "workarounds". Hey, that leads to more innovation!

But not everyone agrees: ""It's not clear that providing a monopoly over a certain process promotes innovation in the field of patient care delivery," said Aaron Kesselheim, a patent attorney and doctor who conducts health policy research at Brigham and Women's Hospital in Boston." It is true that "a 1996 federal law prohibits method infringement lawsuits against doctors. But medical device makers can be sued for inducing infringement of a method by a doctor. And universities and companies are increasingly trying to impose restrictions on the use of their intellectual property." (See also my article How to Operate Within the Law: Patents on Medical Procedures.)

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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