Minnesota Law Review

Note, An Unacceptable Exception: The Ramifications of Physician Immunity from Medical Procedure Patent Infringement Liability

Medical procedures present a unique challenge to the patent system. Without patents, investors may be unwilling to commit resources to the costly development of new procedures. However, patents on these procedures may decrease public access to the procedures, which may harm society’s interest in accessible medical care. In response to these concerns, Congress enacted 35 U.S.C. § 287(c), which does not prohibit patents on medical procedures, but instead makes them unenforceable against physicians and their associated healthcare entities. This legislation is problematic because it violates the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The United States’ violation of this agreement sends a message to other countries to do the same and weakens the ability to strengthen intellectual property protection abroad.

To cure this violation, Congress should enact a TRIPS-compliant compulsory licensing system. Fully enforceable medical procedure patents are not advisable because of the unique ethical considerations that these patents present. However, eliminating medical procedures from patentability reduces the incentives both to innovate and to disclose, and creates the additional risk that costly procedures will go undeveloped. Compulsory licensing balances these interests by ensuring that medical procedures are widely available to the public, while providing financial remuneration for inventors and investors.

:: View PDF

News & Events

  • Fall Submissions Open – Headnotes

    The Minnesota Law Review: Headnotes fall submissions period is open. For more information, please visit our submissions page. Share this: on Twitter on Facebook on Google+

  • Vol. 97 Piece Quoted in Mother Jones Article

    A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

  • Welcome to De Novo

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]


cforms contact form by delicious:days