Mitnovetski and Nicol provide a stimulating and thorough discussion of patenting of medical methods of treatment— an area of law that interests patent lawyers, medical practitioners, and the public. However, a consideration of alternative perspectives to their account of the exclusion of medical methods of treatment from patentability undermines the rhetorical force of their conclusion that there are “strong ordre public and morality reasons and “generally convenient” reasons to justify the existence of such patents”. I set out below four counter arguments to their claims that could lead to a more balanced consideration of whether medical methods should be patented.

TWO EXAMPLES

Firstly, the patentability of medical methods of treatment cannot be discussed in isolation from the larger current normative debate about the justice of patenting medical technologies. Although much of what the authors discuss is necessarily speculative because it involves patenting inventions that have not previously been patentable, two cases present concrete instances of the impact of granting patent rights on healthcare. The first is the example of Myriad Genetics Inc, Salt Lake City, UT, USA, which has patented the genetic diagnostic test for the BRCA1 and BRCA2 breast cancer mutations in the US and, to a lesser extent, in Europe. It is enforcing its patent rights to require national healthcare systems to pay its highly increased fee to conduct the test in Atlanta, when hospitals can perform the test locally much more cheaply and efficiently. Many, including the Curie Institute, which is spearheading opposition proceedings at the European Patent Office, argue that allowing such technologies to be patented undermines socialised healthcare regimes, inadvertently leading to privatisation and diminished access to healthcare. Many women have not been able to access the test due to its high cost.

A second well known example concerns access in developing countries to life saving drugs …