When Non-Lawyers Write Wrongly About Patent Law

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In this article about patenting genes author Rebecca Skloot writes:

Nearly a decade ago, surgical procedures were patented similarly to genes:if you went to the hospital needing, say, a certain kind of appendicitis surgery and your doctor hadn’t licensed the procedure, he couldn’t operate without risking a lawsuit. After one case successfully challenged that practice, the House of Representatives put a moratorium on patenting medical procedures and therapies.

A moratorium on patenting medical procedures and therapies? Really? Because unless I missed something major, patents on medical procedures continue to issue apace. Probably Skloot is referencing but badly misunderstanding Section 287 (c) of the Patent Act, which says in pertinent part:

With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.

This does not prevent anyone from obtaining a patent for a surgical or medical procedure, but rather constrains the way in which any resulting patent can be enforced against doctors and hospitals.   Patent law is important to women, and I wish journalists would make more of an effort to understand it and report on it accurately.

–Ann Bartow

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5 Responses to When Non-Lawyers Write Wrongly About Patent Law

  1. rskloot says:

    Alas, this mistake isn’t about the journalist (yours truly) not making the effort to understand patent law. It’s about inserting errors during the editorial process, which is unfortunately very easy to do in rapid-fire daily journalism. I’ve posted a correction, with an explanation of how the error happened, on my blog.

  2. Ann Bartow says:

    I do appreciate your correction and comment here. However, I looked at your linked blog post and though you are less wrong, you still don’t explain things correctly. You wrote in your blog post:

    In an early draft, when I explained the lawsuit challenging patents on medical procedures, I wrote this: “The House of Representatives ruled that hospitals doctors weren’t required to license surgical patents for treating patients.” That is correct.

    The House of Representatives doesn’t “rule” on specific patent law disputes. Together with the Senate, the House passes laws. We have a bicameral legislature, remember? In this situation the House AND the Senate decided to amend the Patent Act so that doctors and hospitals had immunity from infringement liability with respect to patents on surgical techniques. And it wasn’t because “one case successfully challenged that practice.” The case referenced in the law review article you linked to was decided on patent claim validity grounds. The facts of the case motivated the AMA to lobby Congress to change the Patent Act so that doctors could treat patients in whatever ways they thought best, without worrying about being sued for patent infringement.

  3. Ann Bartow says:

    Skloot’s link (the one she embedded in her comment) worked yesterday, but doesn’t now. Not sure why.

  4. Ann Bartow says:

    Looks like Skloot has edited the article on DoubleX yet again, and deleted the “correction” blog post she touts above altogether. The DoubleX page hosting Skloot’s article itself:
    does not note that corrections were made. Which strikes me as pretty sleazy.

  5. Sis says:

    Gads, those editors! They’re so handy. Hand-eee. Trouble is, as a group, they seem not to like taking the can for a writer’s laziness. Tsk.

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