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Law, ethics and medicine
Are patents for methods of medical treatment contrary to the ordre public and morality or “generally inconvenient”?
  1. O Mitnovetski1,
  2. D Nicol2
  1. 1Allens Arthur Robinson, Stock Exchange Centre, Melbourne, Victoria, Australia
  2. 2Faculty of Law, University of Tasmania, Hobart, Australia
  1. Correspondence to:
 O Mitnovetski
 Allens Arthur Robinson, Stock Exchange Centre, 530 Collins Street, Melbourne Vic 3000, Australia; Oksana.Mitnovetskiaar.com.au

Abstract

“No one has advanced a just and logical reason why reward for service to the public should be extended to the inventor of a mechanical toy and denied to the genius whose patience, foresight, and effort have given a valuable new [discovery] to mankind” (Katopis CJ. Patents v patents: policy implications of recent patent legislation. St John’s Law Review 1997;71:329). The law around the world permits the granting of patents for drugs, medical devices, and cosmetic treatment of the human body. At the same time, patentability for a method of treatment of the same body is denied in some countries on various public policy grounds. Is there any logical justification for this distinction? Are methods of medical treatment not as vital to the health or even to the life of a patient as drugs or medical devices? Why is a cosmetic result patentable and a curative result not?

  • patents
  • patent law
  • patenting of medical treatment methods

https://doi.org/10.1136/jme.2002.000786

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    Footnotes

    • ↵† In this article, the terms “morality” and “ethics” are used as defined by The Oxford English Dictionary. The term “ordre public”, derived from French law, is not easy to translate into English, and therefore the original French term is used in the TRIPS agreement. It expresses concerns about matters threatening the social structures which tie a society together.

    • ↵‡ Note that article 53(a) EPC also expressly excludes patenting of inventions where their publication or exploitation would be contrary to ordre public and morality.

    • The authors request any comments or opinions that readers may have on the issues they have raised. These should be directed to O Mitnovetski: Oksana.Mitnovetskiaar.com.au

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