More than 80 countries, including most Trans-Pacific Partnership (TPP) negotiating parties, exclude medical procedures from patentability. Medical methods are expressly excluded from patentability in Brunei Darussalam (Section 16 of the new Patents Act (2011)), Chile (Article 37 of Chilean Law No. 19.039 on Industrial Property), Malaysia (Section 13 of the Malaysia Patents Act (291 of 1983)), Mexico (Article 19 (VII) of the Industrial Property Law), Peru, (Article 20 of Andean Community Decision 486 "Common Intellectual Property Regime" , as authorized by Article 16.9.2 of the US-Peru TPA), Singapore, (Section 16(2) of the Patents Act (No. 24 of 2001, as amended by Act No. 2 of 2007), as authorized by Article 16.7.1 of the US-Singapore FTA), and Vietnam (Vietnamese Law on Intellectual Property (50/2005)). In Canada, Section 2(d) of the Canadian Patent Act does not exclude medical procedures from patentability, but case law prohibits patents on surgical and therapeutic methods, while allowing patents on diagnostic methods. In New Zealand, while medical procedures are not statutorily excluded from patentability, case law has generally rejected such patents. Only Australia—even though it maintained the flexibility to do so in the AUSFTA (Article 17.9.2)— the Patents Act of 1990 doesn t specifically exclude medical procedures from patentability, and case law suggests that they are in fact patentable.
CONCLUSION
Even in countries where the patentability of such methods is allowed, patents granted are relatively rare. One possible reason for this is that enforcing such patents is very problematic. The patent owner would need to monitor the activities by a more or less large number of doctors and surgeons, who generally provide their services subject to strict privacy rules. Enforcement may be more feasible when new and complex methods are applied by a small group of easily identifiable professionals. The law around the world permits the granting of patents for drugs and medical devices, at the same time, patentability for a method of treatment of the same body is denied in some countries on various public policy grounds.
The various forms of legal systems that exclude medical methods from patent protection are based on ethical reasons. As such ethical reasons are appearing in the patent laws of various legal systems, and are acting as obstacles to the patent protection of medical methods. With the exception of Australia and US , most nations of the world exclude methods of medical treatment from the scope of patentable subject matter and in doing so they have taken away the incentives offered by the patent system. Such a policy has been adopted in light of the ethics inherent in the practice of medicine.
From: "http://www.mondaq.com/india/x/311404/Patent/World+Wide+Legal+Status+Of+Medical+Method+Patents+An+Overview" |
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