Medical procedures, such as methods for performing surgery, are generally patentable. However, no remedy is available if the patent is infringed by a medical practitioner who is infringing in order to perform a medical activity.
Who Is a Medical Practitioner?
There are two types of people who are considered to be medical practitioners:
- A person who is licensed to provide medical activity (for example, a licensed doctor)
- A person who is performing the medical activity under the direction of a person licensed to provide medical activity (for example, a med student)
What Is a Medical Activity?
A medical activity is the performance of a medical or surgical procedure on a body. The medical procedure exception covers procedures in which the novelty is the technique, not a new drug or piece of equipment.
So Can a Doctor Infringe on any Medical Procedure Patent without Consequences?
If the medical practitioner infringes only on a patent on a medical procedure, he is safe. However, the medical procedure exception does not extend beyond patents on procedures. It does not extend to any of the machines or tools used to perform the procedure. Thus, while a doctor will not be liable for infringing on a patented procedure, if he uses a patented surgical tool or a patented article of biotechnology to do so he can be liable for patent infringement and be required to pay remedies.
Do I Need a Patent Attorney?
If you believe someone has infringed upon your patent, or if you are unsure whether you are excluded from liability for patent infringement under the medical procedure exception, you may want to contact a patent attorney. An experienced patent attorney can clarify your rights and can help you with the complex issues of patent law.