Limited exception of Advanced scalability for inventions to patent methods of diagnosis, surgery and treatment, it includes tools, equipment and materials that are used in medical and surgical operations. State legislation has been confirmed by the European portability tools and devices that are used in the practice of the profession of medicine and materials needed in treatment, including medications, for the patent, before the application of the TRIPS Agreement, citing the European Patent Convention (Convention on Munich 1973). The French settled jurisprudence on the application of this principle was then codified legislatively ([1]) under Law No. 78-742 issued on July 13, 1978 to amend the Patents Act No. 68-1 dated January 2, 1968, Under Article 6 (4) of the Act - after the amendment - that the exception of Advanced capability for the patent does not apply to products, especially substances and compounds that are used in diagnostics and therapy and surgery ([2]).
Pursuant to the court ruled that Paris viability of a new method to control the menstrual cycle in women and the incidence of pregnancy using hormone LHRH for the patent on the basis that they are not of methods of prevention or treatment of diseases (Paris 24 sep 1984, 1re esp). It also ruled viability device facilitates the flow of blood out of the body (which is commonly used in blood transfusions) for the patent on the grounds that the invention does not fall in the counter methods of surgery and treatment (Paris 24 sep 1984, 2em esp.). It also ruled viability of device implants in the body to measure the heartbeat for the patent on the grounds that the medical diagnosis of the situation does not only happen in the wake of the results disclosed device .. ((Paris 26 mars 1983 ([3]).
While he spent in a suit tradition of the invention is protected by patent theme of a way to improve the look of the skin and remove wrinkles using the device for injection under the skin surface activates the cells electronically, that the method developed is one of the methods of treatment that should be excluded from protection by the patent application of the provisions of Article 6 (4 ) of the Patent Law French ([4]).
In the United States, it was decided to exclude the principle of medical methods of susceptibility for innocence a long time ago when the warden issued U.S. Patent Office decision in 1883 to refuse an application for a patent on innovating a new way to treat hemorrhoids hemorrhoids. ([5]).
In 1905, the American Medical Association issued American Medical Association code of ethics of the profession ban on doctors to obtain patents relating to medical methods, but the charter did not stand in the way doctors without access to patents for inventions relating to methods of treatment and surgery.
In the year 1954 took the U.S. Patent Office decision to include the health of a patent on the actual treatment depends on the injection of fluids under the skin of the patient, copiers that principle which is laid down in a 1883 decision (Ex Brinkerhoff Decision), and since this time the expansion began in the granting of patents related to methods Medical in the United States. This expansion has raised intense debate, and the American Medical Association opposed this trend so badly that it had issued a decree in 1994 prohibiting doctors to obtain patents relating to methods of treatment and surgery.
Perhaps one of the more patent that sparked controversy in this matter of the patent granted by the U.S. Patent Office on January 4, 1992 on an innovative way to heal the wounds caused by surgery to remove the cataract. The discovery of these conditions is due to the way in 1990 when he was a doctor sees Samuel Pallin conducted an operation to remove the cataract from the eye cataract surgery for a patient, was not able to sew the wound because of the suffering of the patient's medical problems in the heart. After the past two weeks of the procedure show the doctor when disclosure to the patient that the wound may coalesce automatically without sewing and did not leave only a scar simple tissue, and better use of floss surgical, had prepared an article on the discovery and request published in the leading publication in this specialty which the Journal of Cataract and Refractive Surgery, is that the management of the magazine refused to publish the article, because it does not include a real innovative. Although it has got Pallin patent was awarded to him in the January 4, 1994 on the discovery of a way to heal the wounds caused by eye surgery developed ([6]).
([1]) See: Azema, ibid, item 9.
([2]) change the numbering of Article 6 (4) of Law No. 68-1 dated January 2, 1968, which currently holds No. L 611-16 in the legalization of the new French Industrial Property Act No. 92-597, the first in July 1992.
([3]) referred to the provisions in advanced: Azema, Juris - Classeur, fasc. 230. No 14, 15.
([4]) TGI Paris, 23 sep. 1992: PIBD 1992, 111.p.12
Referred to in: Azema, Juris - Classeur - 1994, fasc. 230, no 12
([5]) See: Joseph M. Reisman, Physicians and surgeons as Inventors: Reconciling Medical Process Patents and Medical Ethics, High Technology Law Journal, volume 10. issue 2. Fall 1995.
([6]) to see more details on this topic: Reisman, ibid.
التسميات
Intellectual property