Now that technological progress has made it possible to apply medical innovations for saving human lives, there has appeared a measure of dissonance between the advocates and the adversaries of patents. Patenting means a person is granted a monopolistic or exclusive right to scientific achievement, which is purchasable for a certain financial reward that recoups the disclosure. However, patents imply zero availability of medical procedures to both patients and doctors, which places human lives in jeopardy. The point is that there is a need to protect intellectual property and the need for medical technologies to serve ethical purposes of saving human lives.
Is It Ethical to Patent Medical Procedures
Some experts believe it unethical to impose restrictions on medical patents, whereas others think in a different way. The USA has found itself in a dilemma since, on the one hand, its health system is required to provide all citizens with a high-quality medical assistance, but, on the other hand, there is the right to patent developments, such as medical procedures, in terms of intellectual property, which is under the aegis of the American legislation. Ventose (443) notes that any society puts priority on the health welfare of its citizens by counterbalancing the pros and cons of patent protection of medical treatment. Being a welfare state that it is, the USA has the debates around the bioethical constituent of patenting and its impact on medical services being under way.
The history of debates and patenting occupied the foreground as recently as 18th century. Jones, McCullough, and Richman (235) claim that the need of surgical inventions becoming universally available had not been declared until the late 18th century when John Gregory, a physician-ethicist from Scotland, proclaimed physicians to be patients’ fiduciaries. John Gregory together with Thomas Percival from England tried to make procedures serve the goal of saving human rights (Jones et al. 235). Kinsella and Rosenthal (n.p.) suggest that the major controversy consist in whether or not doctor should receive a monopoly over their achievements, financial reward, or patients and doctors should be automatically permitted to use respective technological innovations.
A patent is a temporary monopoly conferred on the owner of a technology for the disclosure of the achievement to the public (Mitnovetski & Nicol, 2004). The Patent system is a key contributor to human prosperity, which urges scientists to share technologies with other people (Kankanala 1). Patents double-time or stimulate the progress by rewarding inventors (Macer n.p.). The USA is the country where laws have been and are made to protect the rights of its citizens from infringements, violations, and possible offenders, with patent law one of those pieces of legislation. According to Ventose (443), the Federal Court of Australia is one of the countries to have legalized patent limited medical treatment, so is the USA that allows typical practices, with the Supreme Court making “everything under the sun” patentable, according to Kankanala (1).
Based on the labor theory of John Locke as well as the personality theory of Georg Hegel, individuals’ patenting the products of their labor are justifiable. The reason for the patent system to exist is its economic benefit or rationale, with a variety of theories to prove this point. The incentive to innovate theory implies that patenting urges developers to innovate in research and development. The patent-induced theory suggests that inventions are protected. The implication of the prospect theory is that patentees enjoy a monopoly on their inventions. Finally, the rent dissipation theory comes down to patent systems decreasing rent dissipation (Ventose 444-445). Certain countries follow the system of patenting, seeing that they are not willing to forfeit the competition in the biotechnology industry (Macer n.p.).
The combination of these makes up the rationale for patenting. However, the incentives to invent and innovate theories are supposed to be unnecessary for inventors to elaborate medical procedures (Ventose 444-445). Reisman (402) admits that there would be a strong possibility of physicians’ abandoning or concealing their creative innovations for fear of not receiving a worthy award for their scientific labor if the USA legislators were to cancel patenting. Kinsella and Rosenthal (n.p.) claim that Congress decisions from 1997 enabled physicians to take advantage of patented medical procedures, without patentees being able to bring charges of intellectual property violation. The experts believe the law only to limit the number of remedies patentees can pursue to sue physicians for allegedly availing themselves of their scientific technologies without permission. A company-manufacturer of pharmaceuticals or medical devices may bear responsibility for patent infringement (Kinsella, & Rosenthal n.p.).
Patenting is de jure a lawful decision on the part of the American legislative system; however, it is de facto an inhumane judicial obstacle since it may cost hundreds of human lives, if not thousands. There are weighty, nay, unanswerable proofs that speak in favor of patent system cancellation. According to Ventose (443), though protecting intellectual property of any given individual, or their crowning achievements, patent protection does cause healthcare costs to rise in amount, the quality and accessibility of healthcare to decline, and physician autonomy to be trespassed on without any good warrant. More than that, the duty of a physician to act in patients’ best interest, and the right to health are utterly neglected. In introducing the patent right, the USA health system mandates patentees to abuse and impose limitations on medical research accessibility, what is more, the patient’s right of privacy is no longer under protection. Still, what is the bitterest truth about the patent protection is that it levels the scared doctrine of the Hippocratic Oath as well as the sharing norm. The state of affairs in patenting in the US is such that the right is available to potential patentees. That said, physicians and healthcare structures are granted the immunity from patent violation suits, as are physicians and healthcare entities in the EU and New Zealand where medical treatment methods are out of scope of patent protection clauses (Ventose 443).
When it comes to pharmaceutical products, patentees are in capacity not only to impose limits on supply, but also to set a higher price for their medical production. Possible as it is, patentees are more likely than not to refrain from revising the price. A physician who happens to be a patentee may go all the way to limiting the supply of life-saving medical procedures. In doing so, a doctor denies a patient the right to the medical service, which comes into collision with the public good. Licenses not made available by patentees, subjecting medical treatment to a mandatory licensing regime should work. This notwithstanding, such solution may involve a number of limitations as well. Economic effects on public health have yet to be studied before making this initiative happen (Ventose 444).
Jones, McCullough, and Richman (235) admit that The Council on Ethical and Judicial Affairs of the American Medical Association strongly urges against patenting the above-mentioned surgical procedures inasmuch as it has been for centuries since people started exchanging information. They started sharing medical knowledge in the days of Hippocrates without so much as requesting financial reward. Rather than making medicine more efficient, patenting procedures has every chance to reduce physicians’ professionalism and make self-profit a priority. The initiative will limit the access of patients to medical care as well as halting the development of new technologies, for physicians will fear lest they should breach intellectual property by developing new surgical approaches. If they do develop such, they well may trespass on somebody’s patented achievement unknowingly. Scientific projects may not receive peer review any more than they obtain improvements. Cost of medical is yet another disadvantage to consider since there appear opportunities for financial speculations and unscrupulousness.
Surgical craft has been for centuries in the making based on the principle of the altruistic extension of human lives. It would not exist in its current shape if it had not been for the synthesis of knowledge and the communication of discoveries by master physicians to their apprentices many years ago. With the right not to share professional knowledge in place, human mortality will hit its all-time high (Jones, et al. 235). To put an example, an America-based patented medical technology will remain inaccessible for Indian physicians who need to conduct a rapid surgery. Even if it is not about distance, low-salaried people who represent the lowest social stratum will not afford medical services for want of money needed to cover the cost. According to Jones, McCullough, and Richman (235-236), a hard-gained ever-accumulated archive of knowledge in surgery, anatomy, anesthesia, physiology, pharmacology, and other medical domains is garnered, distributed, and shared by physicians and medicine specialists. These experts seek to improve the now practiced medical operations, which will only add quality to medicine-related services. Patenting is aimed at enriching patent holders at patients’ expense.
More importantly than that, patenting is nonsensical since a physician does not invest too significant amounts of money in research to expect financial dividends. Instead, the achievements that form the basis of new techniques are invented and honed by physicians while at hospital. In refusing to improve surgery and other medical practices due to patenting, through sharing of the information on achievements, a physician fails to abide by ethical obligations (Jones et al. 235-236). Mitnovetski and Nicol (2004) suggest that there may arise the conflict of interests due to patenting practices. Physicians to have purchased a license may foist the patented technology on patients for them to recoup expenses instead of recommending a medical technology that would otherwise be far more efficient that the patented one if applied to patients. Conversely, physicians may avoid providing patients with the best technology available if they have not purchased such and do not have it at their disposal (Mitnovetski & Nicol 2004). Macer (n.p.) warns that authorizing patenting will result in trade secrets appearing, which is unethical due to unavailability to those not purchasing technologies. The expert goes on to note that information that poses common legacy is not up for sharing owing to inappropriate control on the part of patentees (Macer n.p.).
If doctors, surgeons, medical students, to name but a few, should risk applying a patented medical technique, they should face the danger of being at law with patentees (Phelan, & Rimmer n.p.). Reisman (402) admits that, besides giving stimuli to disclose inventions, patenting does raise concerns as to the code of ethics and fiduciary duties physicians cannot abide by due to the system that protects intellectual property.
Overall, patenting medical achievement presents a huge dilemma for all the parties involved. On the one hand, intellectual property of the fruits of human intellectual labor should be protected through legislation, more specifically, patents. On the other hand, patenting implies that physicians will not be able to apply a life-saving technique, without purchasing it first. The system of patenting runs counter to the sacred tenets of Hippocrates. Patented achievements become tradable market goods, which narrows the possible scope of their application. It is highly unethical of patentees to allow a technique to be applied in the limited number of hospitals or private clinics. Patent holders may or may not set a higher price for the procedures purchased, underpinning the cost. Price pegging and unrestrained price setting do not contribute to medicine availability. What is more, the principle of information sharing is no longer practiced, with patents in place. Zero information sharing does not allow technologies to be improved and properly revised in terms of peer review. The fact of human life being on the line outweighs any financial benefits. The right to live and receive life-extending assistance is the cornerstone of any legislation, and it should be picked over the right of intellectual property.
Jones, James, W. McCullough, Laurence, B., & Bruce, W. Richman. Surgical Ethics Challenges. Ethics of Patenting Surgical Procedures. Journal of Vascular Surgery. January 2003. 235-236. Web. 26 Feb. 2014.
Kankanala, Kalyan, C. “Patent Protection for Medical Methods: Ethics vs. Patent Incentives.” Brain League. 2008. 1-18. Web. 26 Feb. 2014.
Kinsella, N. Stephan, & Robert, E. Rosenthal, “How to Operate within the Law: Patents on Medical Procedures.” The Legal Intelligencer, 218.16 (1998): n.p. Web. 26 Feb. 2014.
Macer, Darryl, R.J. “Ethical Issues in Patenting Scientific Research.” Proceedings of the International Conference of the Council of Europe on Ethical Issues Arising from the Application of Biotechnology, 2 (2000): n.p. Wed. 26 Feb. 2014.
Mitnovetski, Oksana, & Dianne, Nicol. “Are Patents for Methods of Medical Treatment Contrary to the Ordre Public and Morality or “Generally Inconvenient?” Journal of Medical Ethics, 30 (2004): 470-477. Web. 26 Feb. 2014.
Phelan, Alexandra, & Matthew, Rimmer. “Pacific Rim Treaty Threatens Public Health: Patent Law and Medical Procedures – by Alexandra Phelan and Matthew Rimmer.” Elgar Blog. Word Press. 27 November 2013. n.p. Web. 26 Feb. 2014.
Reisman, Joseph, M. “Physicians and Surgeons as Inventors: Reconciling Medical Process Patents and Medical Ethics.” Berkeley Technology Law Journal, 10.2 (2014): 355-403. Web. 26 Feb. 2014.
Ventose, Eddy. “Medical Patent Law – the Challenges of Medical Treatment.” Edward Elgar Publishing Limited. 2011. 1-465. Web. 26 Feb. 2014.