By: Fei Hu and Aaron Mallin
Abstract
In order to balance the conflicts between medical method patent holders’ patent rights and physicians’ethical duty to freely exchange medical knowledge and skills, the “physicians’immunity statute†in Title 35 of the United States Code was enacted to protect physicians and health care facilities from patent infringement suits when they performed a medical procedure on the human body. However, arguments to amend the scope or application of this statute continue today. A solution to this problem is urgent due to the fast pace of the development of new medical methods.
The authors of this paper discuss the patentability of medical methods and address the potential defects of the “physicians’ immunity statuteâ€. In order to preserve the merits and limit the drawbacks of the statute, this paper proposes replacing the statute by establishing a new “Medical Method Patents†regime. Possible new terms for this patent have been discussed and changes in patent examination procedure have also been introduced.