Patenting Medical Procedures: A Search for a Compromise between Ethics and Economics Note 18 Cardozo Law Review 1996 - 1997

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18 Cardozo L. Rev. 1527 (1996 - 1997)
Patenting Medical Procedures: A Search for a Compromise between Ethics and Economics

handle is hein.journals/cdozo18 and id is 1545 raw text is: NOTES

PATENTING MEDICAL PROCEDURES: A
SEARCH FOR A COMPROMISE BETWEEN
ETHICS AND ECONOMICS
INTRODUCTION
When doctor Samuel Pallin, an Arizona ophthalmologist,
brought an infringement suit for his patent covering the stitchless
incision in cataract surgery,' he probably did not expect that he
would provoke one of the most emotional patent debates in his-
tory. Physicians across the country expressed condemnation of
medical process patents,2 calling such patents horrendous3 and
warning that Dr. Pallin's victory may have profoundly devastating
and mind-boggling consequences for medical science.' The
resonance in the medical community was so strong that the Ameri-
can Medical Association House of Delegates passed a resolution
vigorously condemning the patenting of medical and surgical
procedures and promising to work with Congress to outlaw this
practice.'5 On March 3, 1995, Representatives Greg Ganske and
Ron Wyden introduced The Medical Procedures Innovation and
Affordability Act, which would ban the issuance of patents on
medical and surgical procedures.6 On September 30, 1996, Presi-
1 Patent No. 5,080,111. See Pallin v. Singer, Civ. No. 5:93-202, 1995 WL 608365 (D. Vt.
May 1, 1995).
2 This Note deals with medical process patents-that is, patents on medical procedures
as distinguished from patents on medical instruments, drugs, or mixed process and product
medical patents. For a definition of process, see infra note 45. The words procedure and
process are used interchangeably throughout this Note.
3 Brian McCormick, AMA Opposes Patents for Medical, Surgical Procedures, AM.
MED. NEWS (AMA), July 4, 1994, at 6.
4 Is This Deja vu?, OCULAR SURGERY NEWS, June 1, 1994, at 13.
5 The War Over Patents, ARGUS, July, 1994, at 8.
6 H.R. 1127, 104th Cong. (1995). The Medical Procedures Innovation and Af-
fordability Act in pertinent part provides:
On or after the date of the enactment of this Act, a patent may not be issued
for any invention or discovery of a technique, method, or process for perform-
ing a surgical or medical procedure, administering a surgical or medical ther-
apy, or making a medical diagnosis, except that if the technique, method, or
process is performed by or as a necessary component of a machine, manufac-
ture, or composition of matter or improvement thereof which is itself patenta-
ble subject matter, the patent on such machine, manufacture, or composition of
matter may claim such technique, method, or process.

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