Medical Procedure Exception to Patent Infringement

Yes, a medical procedure can be patentable. According to U.S. patent law, inventors may secure patents for new and useful processes, machines, manufactures, compositions of matter, or any new and useful improvement thereof.

This includes medical procedures, devices, and diagnostic methods. However, a patent does not necessarily allow the patent owner to practice the patented invention, as doing so could potentially infringe upon others’ rights.

Here are a few examples medical procedure patents:

• Stents: Dr. Julio Palmaz patented the balloon-expandable stent in 1985, a device that’s placed in the artery following angioplasty to help keep the artery open. This patent was a crucial step in modern cardiovascular treatments and created the foundation for what would become a multi-billion dollar industry.
• Cochlear implants: These are devices that are surgically implanted into a patient’s ear to help them recover some level of hearing. In the 1970s, researchers at the House Ear Institute patented their method for bypassing damaged parts of the human ear to directly stimulate the auditory nerve.
• LASIK Surgery: The procedure for using lasers to correct refractive errors in the eye has been patented. The original patent for the surgical procedure was issued in the 1980s to IBM.
• Real-time PCR: Dr. Kary Mullis received a patent for his method of rapidly reproducing segments of DNA, a technique known as polymerase chain reaction (PCR). This has been critical in many areas of medicine, including diagnosing diseases.
• Surgical Robots: Intuitive Surgical holds numerous patents for its da Vinci Surgical System, a robot-assisted platform for minimally invasive surgery. The patents cover various aspects of the system, from the robotic arms to the 3D vision system.

In each of these examples, the patent was granted based on the inventors’ ability to demonstrate that their innovation was novel, non-obvious (meaning it wouldn’t be obvious to someone skilled in that field), and useful.

The process for obtaining these patents involved preparing a detailed application describing the invention and how it’s used, which was then examined by a patent examiner to determine if the invention met the requirements for patentability. It’s also worth noting that the application process can be quite lengthy and involves various fees.

Who Is a Medical Practitioner?

A medical practitioner is a professional who practices medicine, which involves promoting, maintaining, or restoring health through the study, diagnosis, prognosis, and treatment of disease, injury, and other physical and mental impairments. Medical practitioners include physicians (doctors), surgeons, physician assistants, and nurses, among others.

What Is a Medical Activity?

A medical activity in the context of patent law refers to the performance of a medical or surgical procedure on a body. This can include actions taken by medical practitioners such as diagnosis, treatment of illnesses, or surgical operations.

Here are some examples of medical activities:

• Diagnosis: This is the process by which a doctor determines what disease or condition explains a person’s symptoms and signs. It’s critical because it allows physicians to manage and treat patients correctly. An example could be a cardiologist using an electrocardiogram (ECG) to diagnose a patient with heart disease.
• Treatment: This is the process of managing a disease or disorder. Treatments can take many forms, including medication, surgery, physical therapy, psychotherapy, etc. For instance, a doctor may prescribe insulin for a patient with diabetes, or an orthopedic surgeon may perform a hip replacement surgery on a patient with severe arthritis.
• Preventive Procedures: These are activities that aim to prevent diseases or injuries. Examples include vaccinations, colonoscopies for early detection of colon cancer, or prescribing daily aspirin to patients at risk of heart disease.
• Surgical Operations: These are invasive procedures that involve cutting into a patient’s body for treatment or diagnosis. Examples include appendectomy (removal of the appendix), coronary bypass surgery (improving blood flow to the heart), or cataract surgery (removing a clouded lens from the eye).
• Rehabilitation: These are activities intended to restore skills or normal life activities that have been lost due to illness, injury, or disease. For example, a physical therapist may help a patient recover mobility after a stroke.
• Palliative care: This involves the use of medications, therapies, and other treatments to reduce pain, symptoms, and side effects to the greatest extent possible and improve the patient’s quality of life. For example, a doctor might prescribe medication to a cancer patient to help manage pain and side effects from chemotherapy.
• Mental Health Services: This includes assessment, diagnosis, treatment, or counseling in a professional relationship to assist an individual or group in alleviating mental or emotional illness, symptoms, conditions, or disorders. For instance, a psychiatrist might provide psychotherapy and prescribe medications to a patient dealing with depression.

Each of these activities falls under the umbrella of “medical activities” as per the patent law context.

So Can a Doctor Infringe on Any Medical Procedure Patent without Consequences?

While medical procedures can be patented, under U.S. law, medical practitioners are shielded from patent infringement liability for performing a “medical activity.” This means that a medical practitioner cannot be held liable or have to pay remedies for patent infringement merely because they perform a medical procedure that is covered by a patent.

However, this exception does not extend to the use of a patented machine, manufacture, or composition of matter in violation of a patent. It’s also important to note that the exemption only applies to actions related to the medical activity itself and not to commercial uses of a patented procedure.

Therefore, while a doctor can technically perform a patented medical procedure without worrying about infringement, it’s a complex issue with many nuances. If you’re a medical professional with concerns about potentially infringing upon a medical procedure patent, it’s advisable to seek legal counsel.

Do I Need a Patent Attorney?

If you are a medical professional concerned about potentially infringing a patent, or if you are an inventor seeking to patent a medical procedure, it is recommended that you consult a patent lawyer.

Patent law is a complex field. Patent attorneys have in-depth knowledge of intellectual property laws, regulations, and procedures related to patents. They can provide valuable insights and guidance specific to your situation, ensuring that you understand your rights, obligations, and potential risks.

If you have an invention or a novel idea that you want to protect, a patent attorney can conduct a thorough patentability search and assessment. They will review existing patents and analyze the novelty and nonobviousness of your invention. This assessment helps determine if your invention is eligible for patent protection and can guide your decision on pursuing the patent application process.

You can find a competent and qualified patent attorney using LegalMatch. LegalMatch is an online platform that can help you find a qualified patent attorney. By posting your case details, you can receive responses from multiple attorneys who practice patent law. You can compare their qualifications, experience, and fees to make an informed decision when selecting legal representation.

LegalMatch has a comprehensive directory of experienced lawyers, all of whom are pre-screened for their professionalism and good standing. Simply post your case on the platform, and you’ll be matched with attorneys who are suited to your needs. This can help take the guesswork out of finding the right legal representation. Use LegalMatch today to find the right lawyer for your needs.